LINCOLN 

THE  LAWYER 


FREDERICK  TREVOR  HILL 


LINCOLN  ROOM 


UNIVERSITY  OF  ILLINOIS 
LIBRARY 

from 
CARL  SANDBURGS  LIBRARY 


LINCOLN  THE  LAWYER 


From  an  ambrotype,  taken  in  i860,  owned  by  Major  William  H.  Lambert 


;c^r~fr*/ 


LINCOLN 
THE  LAWYER 


BY 


FREDERICK  TREVOR  HILL 

AUTHOR  OF  "  THE  CASE  AND    EXCEPTIONS," 
"the  ACCOMPLICE,"  ETC. 


ifewJwwyAwww 


NEW  YORK 
THE  CENTURY  CO. 

1912 


Copyright,  1905,  1906,  by 
The  Century  Co. 


Published,  October,  1906 


TO 
THE  LADY 


<*4 

o 


"I  lay  great  stress  on  Lincoln  s  career  as  a  law- 
yer— much  more  than  his  biographers  do;  .  .  . 
and  I  am,  sure  his  training  and  experience  in  the 
courts  had  much  to  do  with  the  development  of 
those  forces  of  intellect  and  character  which  he 
soon  displayed  on  a  broader  arena." 

The  Hon.  Joseph  It.  Choate  on  Lincoln,  at  Edinburgh,  Scotland, 
November  13,  1900 

"The  best  training  he  [Li7icol?i~\  had  for  the 
Presidency,  after  all,  was  his  twenty-three  years' 
arduous  experience  as  a  lawyer  traveling  the  cir- 
cuits of  the  courts  of  his  district  and  State.  Here 
he  met  in  forensic  conflict,  and  frequently  de- 
feated, some  of  the  most  powerful  legal  minds  of 
the  West.  In  the  higher  courts  he  won  still 
greater  distinction  in  the  important  cases  coming 
to  his  charge" 

President  McKinley  at  the  Marquette  Club, 
February  12,  1896, 


CONTENTS 

CHAPTER  PAGE 

Foreword xv 

i  Lincoln's   Mythical   Birthiught   to    the 

Law 3 

ii  The   Real   Source   of  Lincoln's  Profes- 
sional Aspirations 11 

hi  The  Primitive  Bench  and  Bar  of  Indiana  19 

iv  Legal  Apprenticeship 27 

v  Lincoln's  First  Argument  and  His  Early 

Attitude  toward  the  Law      ....  35 

vi  Lincoln  the  Law  Student 46 

vn  Admission    to    the    Bar — The    Primitive 

Bench  and  Bar  of  Illinois      ....  56 

vm  Lincoln's  First  Partnership 70 

ix  His  Early  Cases  and  Competitors     ...  82 

x  Lincoln  the  Managing  Clerk      ....  96 

xi  Early  Success  in  the  Courts       ....  104 

xn  A  Notable  Partnership 112 

xiii  Judge  Logan  and  Lincoln 124 

ix 


CONTENTS 

CHAPTER  PAGE 

xiv  Lincoln  the  Head  of  a  Law  Firm     .     .     .  134 
xv  Lincoln  the  Lawyer  in  Congress      .     .     .148 

xvi  Life  on  the  Illinois  Circuit 161 

xvn  Judge  Davis  and  Lincoln 178 

xvih  Leader  of  the  Bar 196 

xix  The  Jury  Lawyer 208 

xx  The  Cross-Examiner 221 

xxi  Legal  Ethics 235 

xxn  Legal  Refutation 245 

xxin  Law  in  the  Debate 263 

xxiv  As  Candidate 280 

xxv  As  President 293 

Appendices — 

i  Illinois  Supreme  Court  Memorial  313 

ii  Lincoln's  Case  against  the  Illinois 
Central  R.  R 316 

in  Lincoln's    Cases    in    the    Illinois 

Court  of  Last  Resort       ....  320 
Index 327 


K 


LIST  OF  ILLUSTRATIONS 

Abraham  Lincoln  in  1860,  with  Autograph,  Frontispiece 


PAGE 


Books  from  Abraham  Lincoln's  Library     ....      15 

Autograph  of  Bowling  Green 30 

Judge  Lawrence  Weldon 37 

A  Legal  Opinion  from  Lincoln  ©n  a  Question  of 

Surveying        53 

Judge  John  Reynolds 63 

Hon.  John  T.  Stuart 71 

Office  of  Stuart  &  Lincoln  as  it  is  To-day  ...  74 
Letter  Written  by  Lincoln  Concerning  Preparation 

for  the  Bar 76 

"Praecipe,"  in  Lincoln's  Handwriting,  in  His  First 

Case,  Hawthorne  v.  Woolridge 83 

Lincoln's  Jocose  Caption  over  an  Entry  of  Stuart 

&  Lincoln's  Private  Docket 86 

A    Legal    Document    in    Lincoln's    Handwriting, 

Signed  Stuart  &  Lincoln 89 

Hon.  James  A.  McDougall,  Hon.  O.  H.  Browning, 

Hon.  Lyman  Trumbull,  and  Maj.-Gen.  John  A. 

McClernand 91 

xi 


LIST  OF  ILLUSTRATIONS 


PAGK 


A  "Dictionary  for  Primary  Schools"  with  Lincoln's 

Autograph 107 

Stephen  T.  Logan        115 

Building  in  Springfield,  in  which  Logan  &  Lincoln's 

Office  was  Located 127 

Beginning  and  Conclusion  of  a  Legal  Document  in 

Lincoln's  Handwriting,  Signed  Logan  &  Lincoln  130 

Old  Court-house  at  Lincoln,  the   County   Seat  of 

Logan  County 136 

William  H.  Herndon 139 

Legal  Document  in  Lincoln's  Handwriting,  Signed 

with  the  Firm  Name  and  by  Lincoln  Personally  145 

Grant  Goodrich 160 

Original  Offices  of  Lincoln  &  Herndon  (Exterior)  163 

Hon.  Samuel  H.  Treat 165 

Map  of  Illinois,  Showing  Circuit  of  Lincoln's  Law 

Practice 169 

Old  Court-house  at  Mctamora,  Woodford  County  171 

Original  Offices  of  Lincoln  &  Herndon   (Interior)  173 

Hon.  David  Davis .      .179 

Court-room,  Tazewell  County 187 

Old  Court-house  at  Pekin,  Tazewell  County  .  .  .189 
Facsimile  of  a  Judgment  Written  by  Lincoln  as 

Acting  Judge 191 

Portrait  of  Lincoln 203 

Leonard  Swett 213 

Hon.  James  T.  Hoblitt  and  Hon.  Robert  R.  Hitt  223 

xii 


LIST  OF  ILLUSTRATIONS 


PAGE 


Facsimile  of  a  Part  of  Lincoln's  Memorandum  Brief 
in  the  Case  of  Lewis  v.  Lewis  in  the  United  States 

Supreme  Court 247 

Lincoln's  Pass  as  Counsel  for  the  Illinois  Central 

R.  R 249 

Facsimile  of  First  Page  of  Lincoln's  Opinion  on  a 
Question    Involving    the    Construction     of    the 

Charter  of  the  Illinois  Central  R.  R 251 

Facsimile  of  Part  of  Lincoln's  Trial  Brief  in  His 

Case  against  the  Illinois  Central  R.  R.      .     .     .  254 
Memorandum  Brief  in  Lincoln's  Handwriting,  Op- 
posing an  Attempt  to  Break  a  Will 256 

Bridge  over  the  Mississippi  at  Davenport.  — Old  Pier 
of  First  Mississippi  Bridge  at  Davenport,        .      .   260 

Judge  Stephen  A.  Douglas         265 

Chair  Used  by  Lincoln  in  His  Law  Office       .     .     .  281 

Maj  .-Gen.  John  M.  Palmer 283 

N.  B.  Judd 287 

Inkstand  Used  by  Lincoln  in  His  Law  Office       .     .  289 
Bookcase  and  Table  Used  by  Lincoln  in  His  Law 

Office 290 

First  Draft,  in  Lincoln's  Handwriting,  of  a  Bill  for 

the  Emancipation  of  Slaves  in  Delaware     .     .     .  303 
Second  Draft,  in  Lincoln's  Handwriting,  of  a  Bill 
for    Compensated    Emancipation    of    Slaves    in 

Delaware 306 

Lincoln's  Comments  on  the  Proposed  Measure  of 
Compensated  Emancipation  in  Delaware    .     .     .  308 

•  •  • 

Xlll 


FOREWORD 

The  testimony  concerning  Abraham  Lincoln  is 
voluminous — the  exhibits  are  almost  numberless ; 
but  one  important  point  in  the  vast  record  has 
been  slighted  by  the  mighty  array  of  able  and 
eminent  advocates  who  have  presented  it  to  the 
world,  for  no  one  has  heretofore  attempted  a 
summing-up  of  the  great  President's  legal  career. 

The  explanation  of  this  neglect  is  simple.  Lin- 
coln's achievements  as  a  statesman  are  so  trans- 
cendently  important  that  they  have  demanded 
and  justly  received  exhaustive  and  well-nigh  ex- 
clusive consideration.  Compared  with  his  historic 
guidance  of  the  nation,  his  experience  at  the  bar 
has  appealed  to  his  biographers  as  being  merely 
episodic. 

But  if  it  be  true  that  the  statesman's  legal 

training  qualified  him  for  his  great  task;  if  it  be 

probable  that  without  such  training  he  could  not 

have  accomplished  his  stupendous  results ;  if  it  be 

xv 


FOREWORD 

possible  that  he  would  never  have  been  called  to 
his  high  station  unless  he  had  been  admitted  to 
the  bar— then  surely  the  story  of  his  professional 
life  deserves  more  than  a  passing  comment,  a 
paragraph,  or  even  a  chapter. 

It  is  certainly  strange  that  the  literature  in- 
spired by  Lincoln's  record,  though  vast  in  quan- 
titjr  and  rich  in  quality,  should  include  no  special 
study  of  his  legal  aptitudes.  One  autobiograph- 
ical volume  of  life  on  the  Illinois  circuit  is  coupled 
with  his  name;  but  most  of  the  notable  histories 
dispose  of  his  twenty-three  years'  practice  as  an 
attorney  in  less  than  two  chapters,  and  the  minor 
works  bury  it  altogether  under  a  mass  of  un- 
authentic anecdote  and  trivial  reminiscence. 

But  because  the  influence  of  Lincoln's  legal 
training  can  be  plainly  traced  in  many  of  his  most 
momentous  actions,  because  there  is  evidence  that 
this  training  proved  invaluable  to  him  at  critical 
moments,  because  he  lived  true  to  the  noblest 
ideals  of  his  profession,  and  was,  in  the  highest 
meaning  of  the  words,  a  great  lawyer,  the  treat- 
ment which  the  historians  have  accorded  his  pro- 


FOREWORD 

fessional  career  seems  inadequate  to  the  writer, 
and  it  is  to  justify  this  conclusion  that  these 
pages  are  submitted. 

The  writer  gratefully  acknowledges  the  assist- 
ance  of  all  those  historians  and  biographers  whose 
works  contain  any  authentic  information  concern- 
ing Lincoln's  career  at  the  bar;  he  also  desires  to 
record  his  appreciation  of  the  courtesy  of  the 
court  clerks  and  other  officials  who  kindly  facili- 
tated his  work  in  the  examination  of  the  old 
records  of  the  Illinois  circuit  courts,  and  to  ex- 
press his  thanks  to  the  Hon.  Robert  Lincoln, 
Major  William  H.  Lambert,  the  Hon.  Robert  R. 
Hitt,  the  Hon.  Adlai  E.  Stevenson,  the  Hon. 
James  Haines,  the  Hon.  James  Ewing,  General 
Alfred  Orendorff,  Mr.  Isaac  N.  Phillips,  the 
Hon.  James  Hoblit,  and  other  members  of  the 
Illinois  Bar,  and  to  Mr.  E.  M.  Prince,  Mr. 
George  P.  Davis,  Mrs.  Jessie  Palmer  Weber, 
and  other  officers  of  the  Illinois  State  Historical 
Society,  and  the  McLean  County  Historical  So- 
ciety, for  their  generous  and  efficient  aid. 

xvii 


FOREWORD 

Especially  is  he  indebted  to  the  late  Judge 
Lawrence  Weldon,  of  the  United  States  Court 
of  Claims  (the  last  surviving  member  of  the  bar 
who  traveled  the  circuit  with  Lincoln),  who 
shortly  before  his  death  placed  at  the  writer's  dis- 
posal his  recollections  of  Mr.  Lincoln  as  a  lawyer 
and  his  reminiscences  of  the  days  when  he  and  the 
great  President  practised  together  on  the  old 
Eighth  Illinois  Circuit. 

Since  the  first  edition  of  this  volume  was  issued 
in  1906  a  more  exhaustive  examination  of  Mr. 
Lincoln's  record  at  the  Bar  has  disclosed  ad- 
ditional facts  and  figures  of  importance  which 
have  been  incorporated  in  the  foot-notes  and  ap- 
pendices of  the  present  edition.  For  his  assist- 
ance in  procuring  part  of  this  additional  material, 
the  writer  is  indebted  to  the  courtesy  of  Charles 
W.  Moores,  Esq.,  of  the  Indiana  Bar. 

March,  1912. 

Frederick  Trevor  Hill. 


xvm 


LINCOLN 
THE  LAWYER 


LINCOLN 
THE  LAWYER 


Lincoln's  mythical  birthright  to  the  law 


ONE  of  his  eulogists  declares  that  "Lincoln  is 
not  a  type.  He  stands  alone — no  ancestors 
— no  fellows — no  successors."  The  facts  fully 
justify  the  tribute. 

Assuredly  the  great  Emancipator  was  a  man 
apart,  without  equals  or  followers,  and  he  him- 
self waived  all  claims  to  ancestry.  "I  don't  know 
who  my  grandfather  was,"  he  remarked;  "and 
am  much  more  concerned  to  know  what  his 
grandson  will  be." 

But  though  the  first  American  knew  little 
about  his  family  history  and  cared  less,  his  biog- 
raphers have  devoted  themselves  to  the  subject 
with  zeal  and  enthusiasm,  and,  thanks  to  them,  we 
now  know  who  his  progenitors  were,  even  to  the 

3 


LINCOLN  THE  LAWYER 

sixth  or  seventh  generation,  and  are  fully  in- 
formed of  their  domiciles  and  wanderings  and 
the  various  stations  of  life  to  which  it  pleased 
God  to  call  them. 

The  result  of  all  this  exhaustive  and  laborious 
research  is  mainly  negative;  but  there  are  those 
who  find  signs  in  the  record,  and  among  the 
strange  conclusions  which  have  been  derived  from 
its  perusal,  perhaps  the  strangest  is  that  Lincoln 
inherited  his  legal  talents  and  aptitudes.  Cer- 
tainly nothing  could  be  more  unwarranted  than 
this;  for  little  as  there  is  in  his  origin  to  account 
for  him  as  a  man,  there  is  even  less  to  explain 
him  as  a  lawyer. 

Unless  we  accept  the  well-supported  but  not 
established  contention  that  the  great  President 
was  descended  from  the  Lincolns  of  Hingham, 
Massachusetts,  there  is  absolutely  no  precedent 
in  the  family  for  his  choice  of  a  profession;  and 
those  who  struggle  to  prove  that  he  came  of  a 
race  of  jurists  and  statesmen  virtually  defeat 
themselves  when  they  take  refuge  in  the  genea- 
logical records  of  New  England. 

Samuel  Lincoln,  the  founder  of  the  Massa- 
chusetts house,  had  four  sons,  and  the  descend- 
ants of  some  of  those  sons  undoubtedly  attained 

4 


A  MYTHICAL  BIRTHRIGHT 

high  distinction  at  the  bar.  Indeed,  one  of  them, 
the  Attorney-General  of  Jefferson's  cabinet,  de- 
clined a  nomination  to  the  Supreme  Court  of  the 
United  States,  and  at  least  two  others  were  law- 
yers of  recognized  ability.  But  the  trouble  with 
these  facts  is  that  the  distinguished  Attorney- 
General  and  the  other  legal  luminaries  belonged 
to  branches  of  the  Massachusetts  family  with 
which  Abraham  Lincoln  was  only  remotely,  if  at 
all,  connected ;  and  the  shadowy  claim  that  he  had 
any  birthright  to  the  law  utterly  disappears  when 
the  record  is  more  closely  examined. 

The  original  Lincoln  of  Hingham  was  an 
Englishman  who  came  to  America  apprenticed  as 
a  weaver.  His  fourth  son,  Mordecai,  from  whom 
the  President  is  supposed  to  have  descended, 
was  a  blacksmith.1  His  eldest  son,  another 
Mordecai,  was  a  miller  and  blacksmith.  His  eld- 
est son,  John,— the  "Virginia  John"  of  the  biog- 
raphies,— was  a  farmer;  and  his  third  son,  Abra- 
ham Lincoln's  great-grandfather,  was  likewise  a 
tiller  of  the  soil.  This  leaves  only  his  grandfather 
and  father  to  be  accounted  for,  and  the  former 

1  The  genealogists  are  careful  to  explain  that  a  blacksmith  was 
not  really  a  blacksmith  in  those  early  days,  but  rather  an  "iron- 
worker." ("New  England  Historic  Genealogical  Register,"  Vol. 
XLI,  p.  153  n.)  This  nice  distinction  does  not  affect  the  question 
at  issue,  however  comforting  it  may  be  for  other  purposes. 

5 


LINCOLN  THE  LAWYER 

was  a  farmer,  and  the  latter  a  carpenter.  A 
weaver,  two  blacksmiths,  three  farmers,  and  a 
carpenter — those  are  the  callings  represented  by 
the  President's  forefathers  for  seven  generations. 
Small  wonder,  then,  that  the  believers  in  heredity 
have  recourse  to  the  collateral  branch  of  the  dis- 
tantly related  Massachusetts  family  for  prece- 
dents entitling  the  son  of  a  backwoods  carpenter 
to  enter  the  honorable  profession  of  the  law.  This 
is  virtually  all  that  is  known  of  Lincoln's  ante- 
cedents upon  which  to  predicate  the  theory  of  his 
natural  talents  for  the  law. 

It  is  more  than  possible  that  Lincoln  inherited 
many  sterling  qualities  of  mind  and  character 
from  the  worthy  mechanics  and  farmers  from 
whom  he  was  descended,  but  there  is  very  little 
on  the  face  of  the  record  to  encourage  any  definite 
claims  on  their  behalf  for  the  shaping  of  his 
career.  Certainly  the  paternal  influence  was  not 
inspiring.  His  father  was  an  ignorant  man, 
amiable  enough,  but  colorlessly  negative,  without 
strength  of  character,  and  with  no  ambition 
worthy  of  the  name.  His  only  effort  to  influence 
his  son's  future  was  a  half-hearted  attempt  to 
teach  him  carpentry ;  but  he  soon  abandoned  such 
instruction  and  allowed  the  boy  to  occupy  him 

6 


A  MYTHICAL  BIRTHRIGHT 

self  with  odd  jobs  about  the  farm  when  he  could 
not  hire  him  out  to  neighbors  in  need  of  an  extra 
hand.  Nancy  Lincoln,  the  lad's  mother,  was  bet- 
ter educated  than  most  of  the  pioneer  women. 
She  taught  her  husband  to  read  and  write  and 
sent  her  son  to  his  first  school ;  but  she  died  when 
he  was  only  about  nine  years  old,  and  it  was  his 
step-mother  who  encouraged  his  ambition  for 
education. 

All  the  misinformation  concerning  Lincoln's 
professional  career  is  not,  however,  derived  from 
the  experts  in  heredity.  A  great  deal  of  non- 
sense has  been  written  about  his  early  years,  and 
a  grave  effort  has  been  made  to  prove  him  a 
youth  of  exceptional  promise,  a  brilliant  scholar, 
and  a  prodigy  of  application  and  industry.  As 
a  matter  of  fact,  he  did  not  begin  to  develop 
mentally  until  he  was  about  eighteen,— even  in 
the  prime  of  life  his  intellectual  processes  were 
not  quick, — and  there  is  nothing  to  indicate  that 
he  was  a  particularly  industrious  boy.  Five 
pedagogues— two  in  his  birthplace,  Kentucky, 
and  three  in  Indiana— share  the  honor  of  con- 
tributing to  his  elementary  education;  but  had 
their  pupil  been  never  so  gifted,  they  could 
scarcely   have   discovered   it,    for   his   schooling 

7 


LINCOLN  THE  LAWYER 

amounted  to  less  than  a  year  in  all— about  as  long 
as  it  must  have  taken  some  of  the  minor  biog- 
raphers to  collect  and  record  the  pointless  remi- 
niscences of  his  alleged  schoolmates. 

He  lived  the  healthy,  outdoor  life  of  the 
average  country  lad  of  the  settler  days,  exhibit- 
ing no  precocity  or  abnormal  tendencies  to  dis- 
tinguish him  from  his  fellows.  He  was  fond  of 
tramping  about  the  country,  not  caring  much 
for  shooting  or  fishing,  but  entering  into  other 
sports  and  pastimes  with  zest  and  spirit,  and  ex- 
celling at  games  requiring  strength;  not  in  love 
with  work  for  work's  sake,  but  willing  to  do  his 
share  without  grumbling,  seeing  no  visions  of 
coming  greatness,  and  troubling  himself  with  no 
ponderous  thoughts  concerning  his  career.  This 
is  the  sum  and  substance  of  his  childhood,  and 
the  real  inspiration  of  his  very  human  develop- 
ment has  suffered  at  the  hands  of  the  enthusi- 
astic chroniclers  who  picture  him  as  a  child  of 
destiny— dreamy,  mysterious,  and  miraculously 
endowed. 

In  one  respect  he  was  undoubtedly  exceptional. 
He  liked  reading— an  unusual  trait  among  the 
pioneer  settlers  of  the  Middle  West— but  exag- 
gerated emphasis  has  been  placed  on  this  charac- 

8 


A  MYTHICAL  BIRTHRIGHT 

teristic,  which  was  by  no  means  unique.  For  in- 
stance, the  books  which  comprised  his  earliest 
reading  are  admiringly  called  to  our  attention, 
with  comments  which  suggest  that  they  fore- 
shadow his  career.  The  list  includes  "iEsop's 
Fables,"  "Robinson  Crusoe,"  "Pilgrim's  Pro- 
gress," a  history  of  the  United  States,  and 
Weems's  "Life  of  Washington."  There  is,  of 
course,  nothing  remarkable  about  this  catalogue. 
Almost  every  item  in  it  formed  part  of  the  read- 
ing of  every  intelligent  American  boy  of  the 
period,  whether  he  lived  in  the  backwoods  or  in 
the  city.  Indeed,  the  only  really  notable  fact 
about  the  much-quoted  list  is  that  Lincoln  worked 
three  days  at  twenty-five  cents  a  day  to  compen- 
sate for  an  accidental  injury  to  the  "Life  of 
Washington,"  which  he  borrowed  from  "Blue 
Nose"  Crawford.  There  was  nothing  angelic 
about  the  youthful  Lincoln,  however.  He  con- 
sidered "Blue  Nose"  as  mean  as  any  other  boy 
would  have  thought  him  under  similar  circum- 
stances, and  we  know  that  he  nicknamed  and 
otherwise  ridiculed  the  stingy  old  farmer;  but 
his  dawning  character  is  indicated  by  his  prompt 
recognition  of  the  claim  and  his  faithful  pay- 
ment of  the  damages. 

9 


LINCOLN  THE  LAWYER 

This  is  one  of  the  few  stories  touching  Lin- 
coln's youth  which  has  any  bearing  on  his  tem- 
perament or  his  career.  Most  of  the  anecdotes  of 
his  boyhood  exhibit  him  as  a  child  of  superhuman 
qualities,  and  many  of  them  served  to  misrepre- 
sent other  great  men  before  he  was  born. 

One  episode,  founded  on  fact,  however,  is  re- 
sponsible for  a  grave  misunderstanding  about 
the  impulse  which  prompted  him  to  follow  the 
law.  We  know  from  his  own  statement  that  be- 
fore he  had  been  many  years  in  Gentryville,  Indi- 
ana, he  had  borrowed  from  one  source  or  another 
all  the  books  he  could  lay  his  hands  on  for  a  cir- 
cuit of  fifty  miles,  and  among  the  generous 
lenders  was  a  Mr.  Turnham.  This  gentleman 
lent  him  a  copy  of  the  Revised  Statutes  of  Indi- 
ana; and,  if  we  are  to  believe  the  biographers,  it 
was  this  volume — as  dull  a  tome  as  ever  lay  be- 
tween sheepskin  covers — which  appealed  to  his 
boyish  imagination  and  inspired  his  ambition  for 
the  profession  of  the  law. 


10 


II 


THE   REAL    SOURCE     OF     LINCOLN'S     PROFESSIONAL 

ASPIRATIONS 


HISTORICALLY,  this  copy  of  the  Indiana 
Statutes  is  interesting.  It  is  undoubtedly 
the  first  law  book  which  Lincoln  ever  read;  but 
that  its  musty,  dry-as-dust  pages  could  have 
fascinated  an  out-of-doors  boy  of  seventeen,  or 
imbued  him  with  any  intense  longing  for  a  legal 
career,  is  against  all  human  probability.  One 
biographer  asserts  that  he  read  it  with  all  the 
excitement  and  avidity  with  which  an  ordinary 
boy  would  read  the  romances  of  Dumas,  and 
another  caps  this  with  the  statement  that  his  hero 
"read  and  re-read  it  until  he  had  almost  com- 
mitted its  contents  to  memory ;  and  in  after  years, 
when  any  one  cited  an  Indiana  law,  he  could 
usually  repeat  the  exact  text  and  often  give  the 
numbers  of  the  page,  chapter,  and  paragraph." 

To  appreciate  the  absurdity  of  such  statements 
it  is  only  necessary  to  examine  the  volume  in 

11 


LINCOLN  THE  LAWYER 

question.  It  is  dull  as  only  statute  law  can  be  dull, 
about  as  easily  memorized  as  the  dictionary,  and 
of  no  enduring  authority.  Only  a  short  time 
after  he  had  read  this  compilation1  the  legislature 
amended  some  of  its  provisions,  annulled  others, 
and  generally  revised  the  contents.  And  yet  we 
are  gravely  told  that  "in  after  years,  when  any  one 
cited  an  Indiana  law,  he  could  usually  repeat  the 
exact  text  and  often  give  the  numbers  of  the 
page,  chapter,  and  paragraph"  of  this  obsolete 
revision.     What  a  useful  accomplishment! 

That  is  a  fair  sample  of  the  grotesque  carica- 
turing which  Lincoln  has  suffered  at  the  hands 
of  sentimentalists  not  too  deeply  familiar  with 
human  nature,  to  say  nothing  of  statute  lore. 

But  those  who  believe  in  the  epoch-marking 
influence  of  the  volume  in  question  are  not  satis- 
fied with  the  concession  that  it  was  the  first  law 
which  Abraham  Lincoln  read.  They  contend 
that  it  not  only  inspired  his  choice  of  a  profes- 
sion, but  also  imparted  his  first  knowledge  of 
American  government;  and  they  conjure  up  a 
diverting  picture  of  the  anointed  youth  reading 

1  The  Revised  Statutes  of  Indiana  which  Lincoln  received  from 
Mr.  Turnham  were  published  in  1824.  He  certainly  never  saw  them 
before  18£?6.  They  were  revised  in  1831,  and  a  little  later  they  were 
again  amended.    The  original  copy  which  he  handled  is  in  existence. 

12 


PROFESSIONAL  ASPIRATIONS 

with  eager  eyes  and  glowing  cheeks  the  wondrous 
words  of  the  Declaration  of  Independence  and 
the  Constitution  of  the  United  States  which  pref- 
aced its  pages. 

This  conception  does  credit  to  the  imagination, 
but  it  fades  under  the  cold  light  of  facts.  Long 
before  he  borrowed  Turnham's  famous  Statutes, 
Lincoln  had  read  at  least  one  history  of  the 
United  States,  to  say  nothing  of  Parson 
Weems's  "Life  of  Washington."  Possibly  he 
had  never  read  either  the  Constitution  or  the 
Declaration  in  its  entirety  until  the  Indiana  re- 
vision came  into  his  possession;  but  to  claim  that 
he  obtained  his  first  insight  into  American  gov- 
ernment, at  the  age  of  seventeen,  from  that  vol- 
ume, is  sacrificing  sense  to  sentiment.  More- 
over it  argues  a  lamentable  ignorance  of  the  wis- 
dom dispensed  at  the  country  stories,  especially 
in  a  community  where,  to  use  a  common  phrase 
of  the  times,  "There  was  a  politician  on  every 
stump." 

Jones's  store  was  the  popular  forum  of  Gen- 
tryville,  and  Lincoln  had  been  a  constant  attend- 
ant at  all  its  sessions  since  he  entered  his  teens. 
There  he  had  met  and  talked  with  lawyers,  lis- 
tened to  stump-speakers,  tried  a  little  oratory 

13 


LINCOLN  THE  LAWYER 

himself,  and  won  considerable  reputation  as  a 
ready  talker  among  his  fellow-townsmen;  and 
there,  most  important  of  all,  he  had  heard  of  the 
doings  of  the  Boonville  court,  and  had  kept  in 
intimate  touch  with  its  proceedings. 

Life  at  Gentryville,  Indiana,  with  its  dull, 
trivial  round  of  hard  labor  at  delving,  grubbing, 
corn-shucking,  rail-splitting,  and  the  like,  could 
not  have  been  exhilarating.  Doubtless  it  was  a 
happy  enough  life  for  an  easy-going,  good-hu- 
mored, healthy,  growing  boy ;  but  he  would  have 
been  stupid,  indeed,  if  he  had  not  availed  himself 
of  such  amusements  as  the  neighborhood  af- 
forded, and  the  one  great  diversion  and  intellec- 
tual stimulant  of  the  community  came  through 
the  sessions  of  the  Boonville  court. 

Boonville  was  fully  fifteen  miles  from  Gentry- 
ville, but  people  often  traveled  farther  than  that 
to  attend  the  civil  and  criminal  trials  at  the 
county-seat.  Every  term  of  the  court,  of  course, 
meant  a  market ;  and  the  pioneers  looked  forward 
to  the  coming  of  the  circuit  judge,  not  only  be- 
cause it  promised  entertainment,  but  also  for 
business  reasons. 

The  court  was  their  theater,  their  lecture-plat- 
form, their  common  meeting-place,  their  center 

14 


These  books,  from  left  to  right,  are  "Religious  Truth  Illustrated  from  Science" — Hitch- 
cock: u  Gibbon's  Rome,"  4  vols.;  "Dictionary  of  Congress" — Lanman  :  "  Paley's  Works  "  ; 
"  Angell  on  Limitations*';  "The  Republican  Party" — Sumner,  i860;  "The  Illinois  Convey- 
ancer," and  "A  Dictionary  of  Primary  Schools" 


These  books,  from  left  to  right,  are  "Journal  of  the  House  of  Representatives  of  the  Tenth 
General  Assembly  of  Illinois,"  "Life  of  Black  Hawk,"  "Illinois  Convention  Journal,"  "  Laws  of 
Illinois,  1-41."  "  Revised  Statutes,  Illinois,  1845,"  "Law  Register,  Livingston,  1852,"  "Dean's 
Medical  Jurisprudence,"  and  "Acts  and  Resolutions  passed  at  the  Thirtieth  Congress  of  the 
United  States,  1848" 

Books  From  Abraham  Lincoln's  Library 


PROFESSIONAL  ASPIRATIONS 

of  government,  and  to  it  they  flocked  for  mental 
refreshment  and  recreation  in  a  holiday  spirit. 
Entire  families  would  sometimes  make  the  trip, 
virtually  living  in  their  wagons  while  the  ses- 
sion lasted,  and  the  proceedings  supplied  material 
for  conversation  and  discussion  long  after  the 
event.  Altogether  it  was  a  great  occasion,  and 
the  court-house  was  usually  full  to  overflowing. 

It  is  not  surprising,  then,  that  young  Lincoln 
cheerfully  trudged  to  Boonville  on  foot  and  sel- 
dom missed  a  trial.  There  were  rare  exhibitions 
of  human  nature  in  the  legal  combats  which  he 
witnessed  in  the  little  log  court-house,  plenty  of 
drama  and  excitement  in  the  clash  of  the  bat- 
tling attorneys,  and  a  vast  deal  of  information  for 
any  active  mind.  There  was  also  grim,  earnest, 
serious  business  transacted  by  the  judge  and 
juries— fascinating,  engrossing  business;  and 
doubtless  the  youthful  Lincoln,  listening  to  the 
crude  legal  champions  and  responding  to  the 
dawning  powers  within  him,  mentally  matched 
himself  against  them.  Surely  it  must  have  been 
then  that  his  imagination  was  first  quickened  and 
his  ambition  vitalized  and  focussed. 

Unfortunately,  there  are  no  records  of  the 
Boonville  court  in  existence  to-day,  but  there  is 

17 


LINCOLN  THE  LAWYER 

evidence  that  he  witnessed  at  least  one  hotly  con- 
tested murder  trial  within  its  walls,  and  we  know 
that  the  event  made  a  profound  impression  on 
his  mind.  The  defendant  in  that  case  was  rep- 
resented by  one  Breckenridge,  and  the  advocate 
made  such  a  powerful  summing-up  for  his  client 
that  young  Lincoln,  with  boyish  enthusiasm, 
sought  him  out  after  the  verdict  to  congratulate 
him  on  the  speech  and  its  result. 

"I  felt,"  he  remarked  to  Breckenridge  in  the 
White  House  many  years  afterward,  "that  if 
I  could  ever  make  as  good  a  speech  as  that,  my 
soul  would  be  satisfied,  for  it  was  the  best  I  had 
ever  heard." 

Even  assuming  for  the  sake  of  argument, 
that  this  episode  occurred  after  he  had  perused 
the  Revised  Statutes  of  Indiana,  it  ought  not  to 
be  difficult  to  decide  which  exerted  the  more 
powerful  influence  on  his  future  career— the 
flaming  eloquence  of  the  backwoods  orator  or 
the  lifeless  pages  of  statute  law. 


18 


Ill 


THE  PRIMITIVE  BENCH  AND  BAR  OF  INDIANA 

OF  course  the  Boonville  court-house  bore  no 
resemblance  to  anything  even  remotely 
suggesting  the  domed  dignity  of  a  modern  hall 
of  justice;  but,  though  no  picture  of  the  building 
has  been  preserved,  the  loss  is  not  important, 
for  similar  structures  have  been  accurately  de- 
scribed by  lawyers  who  practised  in  those  early 
days. 

For  instance,  we  know  that  the  first  court- 
house at  Springfield— destined  to  be  the  capital 
of  Illinois— was  erected  at  a  cost  of  forty-two 
dollars  and  fifty  cents.1  It  was  built  of  rough 
logs  and  consisted  of  one  room,— "the  jury  re- 
tiring to  any  sequestered  glade  they  fancied  for 
their  deliberations,"— and  the  Indiana  courts 
were  almost  as  unpretentious.     They  were  either 

1  It  is  a  significant  fact  that  the  jail  cost  twice,  as  much  as  the 
court-house. 

19 


LINCOLN  THE  LAWYER 

frame  or  log  structures,  generally  divided  into 
two  rooms,  the  larger  serving  as  a  place  of  trial 
and  the  smaller  as  clerk's  office,  judge's  cham- 
bers, and  jury-room  combined.  At  one  end  of  the 
trial-room  there  was  usually  a  platform  three 
feet  high,  and  on  this  was  placed  the  judge's 
bench,  a  rough  board  affair  capable  of  seating 
three  men.  In  front  of  this  platform  stood  a 
crude  plank  settee  for  the  lawyers  and  a  small 
table  for  the  clerk  of  the  court,  and  official  pri- 
vacy was  insured  for  those  dignitaries  by  an  im- 
provised railing  consisting  of  a  long  pole  fas- 
tened to  the  walls  with  withes.  The  rest  of  the 
space  was  open  to  the  public,  and  so  freely  did 
it  avail  itself  of  the  privilege  that  there  was  sel- 
dom even  standing  room  inside  the  building, 
and  seats  in  the  windows  were  always  at  a  pre- 
mium. 

One  of  the  circuit  prosecuting  attorneys  of 
Indiana  who  practised  during  Lincoln's  boyhood 
has  left  a  record  of  his  observations  at  Fall 
Creek.  "The  court  was  held  in  a  double  log 
cabin,"  he  writes;  "the  grand  jury  sat  upon  a 
log  in  the  woods,  and  the  foreman  signed  the 
bills  of  indictment,  which  I  had  prepared,  upon 
his  knee.     There  was  not  a  petit  juror  that  had 

20 


PRIMITIVE  PRACTICE  IN  INDIANA 

shoes  on;  all  wore  moccasins  and  were  belted 
around  the  waist  and  carried  side-knives  used  by 
the  hunters." 

It  must  not  be  inferred  from  this  that  only- 
jurors  went  armed  and  caparisoned  in  this 
fashion.  In  the  days  when  Lincoln  haunted  the 
Boonville  courts,  everybody,  from  the  judge  to 
the  humblest  spectator,  wore  deer-hide  suits  and 
moccasins  of  the  same  material.  Indeed,  he  had 
arrived  at  manhood  before  clothing  of  dyed  wool 
and  tow  began  to  be  worn,  and  for  a  long  time 
afterward  it  was  only  the  women  who  adopted 
such  garments. 

But  the  judge  and  juries  in  buckskin  were 
shrewd  and  fearless  administrators  of  justice, 
and  the  lawyers  who  practised  before  them  were 
men  of  equal  caliber.  Almost  anyone  who  chose 
to  do  so  could  follow  the  profession  of  the  law.1 
There  were  no  regular  examinations  for  admis- 
sion to  the  bar,  and  a  license  to  practice  could  be 
obtained  by  any  applicant  of  good  moral  stand- 
ing, which  was  about  the  only  qualification  most 
of  the  practitioners  lacked,  according  to  one  au- 

irrhis  is  virtually  the  case  in  Indiana  to-day.  See  Horner's  an- 
notated Indiana  Statutes  (revision  of  1881  supplemented  to  1901), 
chap,  ii,  art.  31,  sec.  962. 

21 


LINCOLN  THE  LAWYER 

thority.  If  a  man  was  a  fluent  talker,  pugna- 
cious, shrewd,  and  able  "to  think  on  his  feet,"  he 
was  fully  equipped  for  the  duties  of  the  profes- 
sion. Education  was  not  necessary,  and  al- 
though there  were  a  few  advocates  in  the  early 
history  of  Indiana  who  were  fairly  well  read, 
none  of  them  had  any  pretentions  to  learning. 
Indeed,  scholarship  would  have  been  lost  on  the 
courts,  to  say  nothing  of  the  juries,  for  many  of 
the  judges  were  uneducated,  some  were  almost 
illiterate,  and  none  of  them  well  grounded  in 
the  law  or  versed  in  its  technicalities. 

General  Marston  Clark  was  one  of  the  judges 
whose  portrait  has  fortunately  been  preserved. 
He  was  an  uneducated,  backwoods,  muscular  six- 
footer  whose  judicial  costume  was  a  hunting- 
shirt,  leather  pantaloons,  and  a  fox-skin  cap, 
with  a  long  queue  down  his  back  and  who  wrote 
his  name  "as  large  as  John  Hancock  in  the  Dec- 
laration of  Independence."  Truly  a  formidable 
figure  of  a  man,  and  although  history  reports 
that  he  was  "no  lawyer,"  his  conduct  of  the  case 
of  one  John  Ford  demonstrates  that  no  lawyer 
could  trifle  with  him. 

This  John  Ford  was  arrested  for  horse-steal- 
ing, and  his  counsel  interposed  various  technical 

22 


PRIMITIVE  PRACTICE  IN  INDIANA 

objections  to  the  indictment  on  the  ground  that 
the  prisoner's  name  was  John  H.  Ford,  and  not 
plain  John  Ford;  that  there  was  no  value  al- 
leged for  the  stolen  horse;  and,  finally,  that  the 
animal  was  not  a  horse,  but  a  gelding.  All  of 
these  preliminary  pleas  were  overruled  by  the 
court,  and  the  trial  proceeded,  with  the  result 
that  the  prisoner  was  convicted  and  sentenced 
to  thirty-nine  lashes.  Then  the  defendant's  at- 
torney moved  for  a  new  trial  because  there  was 
no  proof  that  the  crime  had  been  committed  in 
Indiana.  Judge  Clark  was  no  lawyer,  but  he 
saw  the  force  of  this  contention,  and  advised 
counsel  that  he  would  take  the  matter  under  con- 
sideration and  render  his  decision  within  twenty- 
four  hours.  The  moment  the  court  adjourned, 
however,  he  ordered  the  sheriff  to  see  that  the 
thirty-nine  lashes  were  well  laid  on,  and  when 
the  court  reopened  next  morning,  he  gravely 
took  up  the  unfinished  business  of  the  previous 
day.  He  had  come  to  the  conclusion,  he  an- 
nounced, that  the  point  raised  by  Ford's  attor- 
ney was  well  taken  and  that  a  new  trial  must  be 
granted.  But  at  this  juncture  the  prisoner  in- 
terposed in  his  own  behalf,  protesting  that  he 
knew  when  he  was  beaten,  and  that  he  had  had 

23 


LINCOLN  THE  LAWYER 

enough  law  and  desired  the  court  to  take  no  fur- 
ther trouble  on  his  account. 

Another  judge  is  reported  to  have  quelled  a 
disturbance  in  his  court  by  descending  from  the 
bench  and  thrashing  the  nearest  offenders  to  a 
standstill. 

"I  don't  know  what  power  the  law  gives  me  to 
keep  order  in  this  court,"  he  admitted,  as  he  re- 
sumed his  coat  and  the  bench,  "but  I  know  very 
well  the  power  God  Almighty  gave  me." 

Little  informalities  of  this  sort  were  not  in- 
frequent, but  they  detracted  nothing  from  the 
dignity  of  the  courts,  though  the  free-and-easy 
proceedings  were  sometimes  astonishing. 

"As  I  entered  the  court-room,"  relates  an  ob- 
server of  the  Hudson  trial,1  "the  judge  was  sit- 
ting on  a  block,  paring  his  toe-nails,  when  the 
sheriff  entered  out  of  breath  and  informed  the 
court  that  he  had  six  jurors  tied  up  and  his  dep- 
uties were  running  down  the  others" 

Apparently  jury  duty  was  no  more  popular 
in  those  days  than  it  is  now. 

But  because  these  frontier  courts  and  their 
presiding  officers  lacked  the  formality  and  de- 
corum which  a  later  day  demands,  it  must  not  be 

*See  Smith's  "Early  Trials  in  Indiana." 

24 


PRIMITIVE  PRACTICE  IN  INDIANA 

inferred  that  there  was  any  element  of  farce  or 
travesty  in  the  administration  of  the  law.  The 
surroundings  which  to-day  lend  substance  and 
dignity  to  courts  would  not  have  been  tolerated 
on  the  frontier.  Formalities  would  have  divested 
the  proceedings  of  all  meaning  and  interest 
for  the  people,  and  made  a  mummery  out  of 
what  was  real.  The  pioneers  were  not  peas- 
ants who  had  to  be  impressed  by  ceremonials 
and  awed  into  a  respect  for  authority.  They 
were  thoughtful,  independent  men,  governing 
themselves,  and  the  judges,  the  courts,  and  the 
laws  were  of  their  own  making.  The  idea  of  a 
judge  maintaining  order  with  his  fists  may  seem 
ludicrous  to  us;  but  judicial  robes,  to  say  nothing 
of  mace-bearers,  wigs,  and  canopies,  would 
have  seemed  far  more  laughable  to  the  settlers. 
They  possessed  a  natural  genius  for  self-gov- 
ernment, recognized  the  authority  of  the  law, 
and  they  fulfilled  it. 

In  the  case  of  Hudson  before  referred  to, 
where  the  judge  was  surprised  at  his  toilet  and 
the  jury  had  to  be  corralled  by  sheriff's  deputies, 
the  defendant,  a  white  man  indicted  for  killing 
an  Indian,  was  promptly  convicted  despite  the 
fearful  prejudice  against  the  redskins  which  ex- 

25 


LINCOLN  THE  LAWYER 

isted  among  the  pioneers — an  exhibition  of  judi- 
cial temperament  and  regard  for  duty  which 
should  shame  many  a  jury  of  to-day. 

It  was  among  men  of  this  stamp  and  charac- 
ter that  Lincoln  passed  his  boyhood,  and  it  was 
their  administration  of  justice  which  won  his  re- 
spect and  first  encouraged  him  to  think  of  a 
legal  career. 


26 


IV 


LEGAL  APPRENTICESHIP 


1INCOLN  had  just  reached  his  majority 
-^  when  his  father,  who  always  saw  promis- 
ing land  on  the  other  side  of  his  fence,  decided 
to  migrate  from  Indiana,  and  after  a  long 
journey,  fraught  with  all  the  hardships  inciden- 
tal to  travel  in  those  days,  the  family  reached 
Decatur,  Macon  County,  Illinois,  in  the  spring 
of  1830.  Up  to  that  time  the  young  man  had 
given  his  father  the  entire  benefit  of  his  services, 
but  he  had  long  been  anxious  to  start  life  on  his 
own  account,  and  shortly  after  the  new  home- 
stead was  staked  out  he  began  to  shift  for  him- 
self. Except  in  the  matter  of  health  and 
strength,  he  was  poorly  equipped  to  earn  his  own 
living,  for  he  had  no  education  beyond  reading, 
writing,  and  ciphering  to  the  rule  of  three,  and 
his  mental  power  was  still  largely  undeveloped. 
For  a  year  he  attempted  nothing  more  ambi- 

27 


LINCOLN  THE  LAWYER 

tious  than  manual  labor,  working  in  the  imme- 
diate vicinity  of  his  father's  house  at  odd  jobs  of 
all  sorts,  including  the  splitting  of  several  thou- 
sand rails  destined  to  become  famous  in  Ameri- 
can history. 

One  of  those  odd  jobs  took  him  to  the  village 
of  New  Salem,  and  there  he  became  what  the 
Fell  autobiography  calls  "a  sort  of  clerk"  in 
Offutt's  grocery  store.  The  duties  of  this  office 
were  not  very  onerous,  however,  and  the  young 
clerk  was  soon  devoting  every  spare  moment  to 
his  books.  People  used  to  meet  him  trudging 
along  the  country  roads,  reading  as  he  walked; 
customers  found  him  stretched  upon  the  store 
counter,  absorbed  in  his  books;  and  his  compan- 
ions reported  that  he  studied  late  into  the  night. 
Certainly  he  was  self-educated  in  the  broadest 
sense  of  the  term,  and  it  has  been  truly  said  that 
he  "never  finished  his  education.  To  the  night 
of  his  death  he  was  a  pupil,  a  learner,  an  in- 
quirer, a  seeker  after  knowledge,  never  too 
proud  to  ask  questions,  never  afraid  to  admit 
that  he  did  not  know." 

Offutt's  assistant,  however,  never  had  the 
slightest  intention  of  remaining  a  clerk,  and, 
mindful  of  his   ambition   to   become   a   lawyer, 

28 


LEGAL  APPRENTICESHIP 

he  attended  a  debating  club,  made  up  of  boys  of 
the  neighborhood,  where  he  had  a  chance  to 
"practise  polemics,"  as  he  expressed  it,  and 
speedily  gained  a  reputation  among  his  fellows 
as  a  dangerous  opponent  in  argument. 

Before  the  days  of  this  club,  however,  he  had 
already  demonstrated  his  ability  as  a  speaker. 
Indeed,  he  had  not  been  long  in  Illinois  before 
he  had  talked  down  one  local  orator;  and  as  the 
general  store  was  the  accepted  meeting-place 
and  center  of  public  opinion  in  New  Salem,  he 
had  unbounded  opportunity  to  exercise  his  un- 
doubted "gift  of  gab." 

It  is  not  probable  that  the  embryo  lawyer  ob- 
tained much  information  from  the  legal  lumi- 
naries of  New  Salem,  but  he  attended  most  of 
the  trials  conducted  by  Bowling  Green,  the  local 
justice  of  the  peace,  who  is  said  to  have  decided 
a  hog  case  known  as  Ferguson  v.  Kelso  by  de- 
claring that  the  plaintiff's  witnesses  were 
"damned  liars,  the  court  being  well  acquainted 
with  the  shoat  in  question,  and  knowing  it  to  be- 
long to  Jack  Kelso."  This  and  other  similar 
exhibitions  of  judicial  temperament  were  pos- 
sibly responsible  for  Lincoln's  first  bill  in  the 
legislature,  which  was  a  measure  to  restrict  the 

29 


LINCOLN  THE  LAWYER 

jurisdiction  of  justices  of  the  peace.  It  could 
not  have  been  aimed  directly  at  Bowling  Green,1 
however,  for  he  and  Lincoln  were  fast  friends, 
and  long  before  the  j^oung  student  was  admitted 
to  the  bar  he  was  allowed  to  practise  in  an  infor- 
mal way  before  the  eccentric  justice. 

Springfield  was  only  a  few  miles  from  New 
Salem  and  there  is  every  reason  to  believe  that 
Lincoln    attended    the    sessions    of    the    circuit 


&&ZS 


AUTOGRAPH  OF  BOWLING  GREEN 

court  at  the  county-seat;  but  whatever  else  he 
may  have  done  at  this  time  with  the  definite  pur- 
pose of  preparing  himself  for  his  future  calling, 
he  was  unquestionably  developing  those  traits 
of  character  which  distinguish  really  great  law- 
yers from  those  who  are  merely  successful. 

1  The  biographies  give  several  different  spellings  of  the  judge's 
name,  and  in  them  he  figures  as  Bowlin  and  Bowline  as  well  as 
Bowling  Green.  The  writer  has,  however,  examined  documents  on 
file  in  the  Illinois  courts  signed  by  the  justice,  who  spelled  his  name 
as  it  appears  in  the  text. 

30 


LEGAL  APPRENTICESHIP 

It  is  a  significant  fact  that  in  a  community 
where  crime  was  virtually  unknown,  where  plain, 
straightforward  Sealing  was  assumed  as  a  mat- 
ter of  course,  and  credit  was  fearlessly  asked 
and  given,  Lincoln  won  an  enviable  reputation 
for  integrity  and  honor.  In  a  moral  atmo- 
sphere of  this  sort  ordinary  veracity  and  fairness 
attracted  no  particular  attention.  Honesty  was 
not  merely  the  best  policy ;  it  was  the  rule  of  life, 
and  people  were  expected  to  be  upright  and 
just  with  one  another.  But  when  a  clerk  in  a 
country  store  walked  miles  to  deliver  a  few 
ounces  of  tea  innocently  withheld  from  a  cus- 
tomer by  an  error  in  the  scales,  and  when  he 
made  a  long,  hard  trip  in  order  to  return  a  few 
cents  accidentally  overpaid  him,  he  was  talked 
about,  and  the  fact  is  that  "honest  Abe"  was  a 
tribute,  not  a  nickname. 

To  suggest  that  inflexible  integrity  is  indis- 
pensable to  the  make-up  of  a  great  lawyer  is,  of 
course,  to  challenge  the  sneer  or  the  smile  of  the 
cynically  minded.  The  jests  about  honest  law- 
yers have  become  classic,  and  they  will  forever 
continue  to  delight.  Yet,  despite  the  humorist 
and  the  cynic,  there  is  probably  no  profession  in 
the  world  which  makes  greater  demands  upon 

31 


LINCOLN  THE  LAWYER 

integrity,  or  presents  nicer  questions  of  honor, 
or  offers  wider  opportunities  for  fairness,  than 
the  profession  of  the  law.  The  fact  that  many 
distinguished  practitioners  have  not  maintained 
the  highest  standards  of  the  calling,  that  most 
of  them  have  compromised  for  monetary  or  mo- 
mentary success,  that  a  few  have  actually  abused 
their  great  opportunities,  does  not  in  the  least 
impeach  the  proposition  that  extraordinary  in- 
tegrity, honor,  and  fairness  are  the  essential 
qualities  of  a  great  lawyer.  It  merely  demon- 
strates how  rare  great  lawyers  are. 

Of  course  it  does  not  follow  that  because  a 
lawyer  is  a  good,  or  even  a  great,  man,  he  must 
be  a  great,  or  even  a  good,  lawyer.  But  one 
thing  is  certain :  no  man  deserves  to  be  classed  as 
a  great  lawyer  who  does  not  fairly  exemplify  the 
noblest  aspirations  of  his  calling.  If  the  number 
of  litigations  in  which  a  lawyer  has  been  engaged 
be  the  true  test  of  professional  eminence,  some  of 
the  modern  "negligence  attorneys"  must  be  ad- 
mitted to  the  highest  station ;  if  the  monetary  im- 
portance of  their  clientage  is  to  count,  the  legal 
guardians  of  great  corporate  interests  must  out- 
rank all  who  have  gone  before;  if  success  in  the 

32 


LEGAL  APPRENTICESHIP 

courts  is  the  criterion,  Aaron  Burr  must  have 
first  honors,  for  he  never  lost  a  case. 

But  if  loftier  considerations  enter  into  the 
question  of  what  constitutes  a  really  great  law- 
yer,— if  it  is  right  to  demand  something  nobler 
than  advocacy,  something  broader  than  com- 
mercial aptitude,  something  more  influential 
than  erudition  and  more  enduring  than  success, 
— then  it  is  proper  to  insist  on  personal  character 
as  one  of  the  elements  that  determine  the  just 
rank  of  any  member  of  the  profession. 

No  man  ever  believed  in  his  calling  more 
thoroughly  than  Lincoln,  and  he  had  no  patience 
with  the  much-mouthed  charge  that  honesty  was 
not  compatible  with  its  practice. 

"Let  no  young  man  choosing  the  law  for  a 
calling  yield  to  that  popular  belief '"  he  wrote. 
"If,  in  your  judgment,  you  cannot  be  an  honest 
lawyer,  resolve  to  be  honest  without  being  a 
lawyer.  Choose  some  other  occupation  rather 
than  one  in  the  choosing  of  which  you  do,  in  ad- 
vance, consent  to  be  a  knave/' 

If  the  writer  of  those  lines  abated  anything 
of  his  boyish  integrity  under  the  stress  of  the 
workaday  duties  of  the  law,  his  theories  in  regard 

33 


LINCOLN  THE  LAWYER 

to  its  practice  are  neither  interesting  nor  instruc- 
tive. But  if  he  lived  them  out  and  proved  them 
practical,  they  are  of  the  first  importance,  and 
they  have  a  direct  bearing  upon  his  much-dis- 
puted place  in  the  profession. 

In  either  event,  however,  it  is  fair  to  test  Lin- 
coln the  lawyer  by  his  own  standards;  to  inquire 
whether  his  conduct  as  a  member  of  the  bar  con- 
formed to  the  reputation  which  he  earned  as  a 
clerk  in  Offutt's  store;  to  compare  his  profes- 
sional ethics  with  his  private  principles ;  to  ascer- 
tain whether  he  compromised  with  his  conscience 
in  the  interests  of  his  clients,  and  to  judge  his 
legal  career  accordingly. 


34 


V 


Lincoln's  first  argument  and  his  early 
attitude  toward  the  law 


LINCOLN  never  sought  to  make  himself  a 
-*  general  favorite,  and  yet  he  had  not  been 
long  in  New  Salem  before  he  was  the  most  popu- 
lar man  in  the  town.  Doubtless  he  possessed,  even 
in  those  early  years,  that  power  of  personal  mag- 
netism which  he  afterward  exerted  so  command- 
ingly  in  the  courts  and  upon  all  sorts  and  condi- 
tions of  men.  But  it  is  not  necessary  to  insist 
upon  this  to  explain  his  immediate  favor  with 
the  New  Salemites.  He  could  tell  a  good  story, 
make  a  creditable  stump-speech,  give  an  excel- 
lent account  of  himself  in  contests  of  strength, 
and  hold  his  own  against  all  comers  in  the  daily 
debates  at  the  village  forum.  Moreover,  he  lis- 
tened attentively  when  other  people  talked,  never 
boasted  of  his  physical  prowess,  and  was  tol- 
erant of  all  intelligent  opinion.  His  extreme 
3  35 


LINCOLN  THE  LAWYER 

popularity  with  men  of  his  own  age  is  particu- 
larly remarkable,  however,  when  we  remember 
that  he  neither  drank  nor  smoked;  for  young 
men  are  apt  to  regard  the  use  of  tobacco  and  sti- 
mulants as  essential  to  good-fellowship  and  manly 
camaraderie,  and  this  was  especially  true  of  the 
settler  days.  Lincoln  was  not,  however,  a  total 
abstainer  in  any  strict  sense  of  the  words.  He 
did  not  drink  intoxicants  because  he  did  not  like 
them,  and  he  did  not  smoke  for  a  similar  reason. 
Judge  Douglass  once  undertook  to  ridicule 
him  on  this  subject. 

"What!  Are  you  a  temperance  man?"  he  in- 
quired sneeringly. 

"No,"  drawled  Lincoln,  with  a  smile,  "I'm  not 
a  temperance  man,  but  I'm  temperate  in  this,  to 
wit,  —  I  don't  drink."1 

With  his  elders  the  young  storekeeper  found 
favor  for  a  variety  of  reasons.  They  soon  dis- 
covered that  he  knew  more  than  any  of  them, 
but  never  presumed  upon  it;  that  he  was  genial 
and  obliging,  always  ready  to  lend   a  hand   at 

1  This  conversation  occurred  in  the  presence  of  Judge  Lawrence 
Weldon,  who  repeated  it  in  an  interview  with  the  writer.  Judge 
Weldon  was  the  last  surviving  lawyer  who  traveled  the  circuit  with 
Lincoln.  [See  Foreword.]  He  died  in  the  spring  of  1905,  after  a 
long  and  useful  career  on  the  bench  of  the  United  States  Court  of 
Claims  in  Washington. 

36 


From  a  photograph  by  Rice 

Judge  Lawrence  Weldon 


EARLY  APTITUDES 

anything,  from  roofing  a  barn  to  rocking  a  baby ; 
and  that  he  was  as  reliable  in  business  matters 
as  he  was  in  neighborly  deeds  and  kindnesses. 

But  perhaps  his  most  winning  quality  with 
young  and  old  alike  was  his  sincere  belief  in  his 
fellow-townsmen  and  their  community.  Local 
pride  never  had  a  more  buoyant  champion  than 
he.  For  him  Sangamon  County  in  general  and 
New  Salem  in  particular,  was  the  promised  land, 
and  he  was  confident  that  the  people  were  equal 
to  the  task  of  developing  it  according  to  its  needs. 
Thus  when  it  was  first  suggested  that  the  shal- 
low, snag-bound  Sangamon  River  was  navigable 
and  might  be  made  a  great  highway  of  com- 
merce, he  eagerly  championed  the  theory  and 
worked  with  voice,  pen,  and  hand  to  realize  a 
practical  result.  The  Sangamon  is  still  unnav- 
igable  and  New  Salem  has  disappeared,  but  Lin- 
coln's plea  for  improving  the  waterway  remains 
as  evidence  of  his  sincere  belief  in  the  future  of 
the  community  and  to  show  us  what  he  could  do 
with  a  weak  cause  at  the  age  of  twenty-one. 

The  argument  is  not  remarkable,  but  it  is  ex- 
ceedingly interesting  and  suggestive.  Although 
he  was  young  and  boyishly  enthusiastic,  Lincoln 
did  not  overstate  the  possibilities  nor  underesti- 

39 


LINCOLN  THE  LAWYER 

mate  the  difficulties  of  his  case;  and  despite  the 
really  laughable  attempt  which  was  afterward 
made  to  force  the  passage  of  the  Sangamon, 
there  is  nothing  ludicrous  in  his  plea.  What 
he  claimed  sounds  reasonable,  and  what  he  hoped 
for  possible  even  in  the  face  of  failure. 

This  early  effort  plainly  indicates  Lincoln's 
natural  aptitude  for  logical  statement.  But  it 
does  more  than  that.  It  displays  a  trait  which 
few  lawyers  possess;  for  the  ability  to  present 
facts  clearly,  concisely,  and  effectively  without 
taking  undue  advantage  of  them  is  a  rare  legal 
quality.  It  requires  not  only  ability  but  courage ; 
not  only  tact,  but  character.  It  is  one  of  the  in- 
fallible tests  which  distinguish  the  legal  bravo 
from  the  jurist,  and  it  will  be  demonstrated  in  a 
future  chapter  that  Lincoln  fulfilled  it  in  mas- 
terful fashion. 

It  was  in  a  circular  announcing  himself  a  can- 
didate for  the  State  legislature  that  this  Sanga- 
mon River  argument  appeared;  for  Lincoln,  en- 
couraged by  the  good  will  of  his  New  Salem 
friends,  had  decided  to  make  trial  of  his  political 
fortunes.  There  was,  therefore,  a  double  tempta- 
tion to  indulge  in  extravagant  promises  and 
prophecies.     He  believed  in   his   cause    and   he 

40 


EARLY  APTITUDES 

wanted  to  please  his  constituents,  and  yet  there  is 
not  a  word  of  exaggeration  in  the  entire  address. 
It  is  quiet,  frank,  earnest,  and  simple. 

This  circular  is  important  in  the  history  of 
Lincoln's  professional  career  not  only  because 
it  contains  his  first  argument,  but  also  because 
it  records  his  earliest  public  comment  upon  law. 
The  evils  of  usury  had  been  widely  discussed 
throughout  the  State  of  Illinois  for  some  time; 
and  as  there  was  a  radical  difference  of  opinion 
concerning  the  remedy,  each  candidate  was  ex- 
pected to  express  his  views  upon  the  much- 
mooted  question.  Exorbitant  interest  was  impov- 
erishing borrowers,  but  it  was  feared  that  strin- 
gent laws  might  drive  capital  altogether  out  of 
the  country  and  arrest  its  development.  Lincoln 
announced  himself  as  favoring  a  strict  law  on  the 
subject,  despite  the  objection  that  a  high  rate 
of  interest  might  be  preferable,  in  many  cases,  to 
no  loan  at  all,  and  his  answer  to  this  has  served 
to  shock  more  than  one  of  his  biographers. 

"In  cases  of  extreme  necessity,"  he  wrote, 
"there  could  always  be  means  found  to  cheat  the 
law;  while  in  all  other  cases  it  would  have  its  in- 
tended effect.  I  would  favor  the  passage  of  a 
law  on  this  subject  which  might  not  be  very  easily 

41 


LINCOLN  THE  LAWYER 

evaded.  Let  it  be  such  that  the  labor  and  diffi- 
culty of  evading  it  could  only  be  justified  in 
cases  of  greatest  need."1 

This  temperate  announcement  seems  very  re- 
grettable to  certain  estimable  historians,  who  pull 
a  long  face  and  record  their  surprise  at  words 
which,  as  one  of  them  puts  it,  "sound  strange 
enough  from  a  man  who  in  later  life  showed  so 
profound  a  reverence  for  law." 

But  the  immature  Lincoln  was  wiser  and  more 
broad-minded  than  his  disapproving  admirers. 
He  knew  that  the  enforcement  of  any  law  de- 
pends entirely  upon  public  opinion,  and  he  was 
not  afraid  to  admit  that  evasions  of  the  law  were 
possible  and,  under  certain  circumstances,  per- 
missible. There  was  no  sham  or  pretense  or 
hide-bound  reverence  for  law  as  law  in  his  mental 
make-up.  He  believed  in  its  spirit  and  not  in  its 
letter.  It  is  the  Shylocks  and  not  the  Lincolns 
who  pose  as  the  champions  of  statutes  and  de- 
mand their  strict  interpretation. 

But  the  high-minded  commentators  who  cen- 
sure Lincoln's  attitude  in  this  matter  might  have 
found  further  evidence  of  youthful  indiscretion 

1  The  circular  containing  this  statement  and  the  Sangamon  River 
argument  was  issued  in  March,  1832. 

42 


EARLY  APTITUDES 

in  this  circular,  where  its  author  discusses  the 
advisability  of  a  proposed  revision  of  all  the 
State  laws. 

"Considering  the  great  probability  that  the 
framers  of  those  laws  were  wiser  than  myself," 
he  naively  remarks,  "I  should  prefer  not  med- 
dling with  them  unless  they  were  attacked  by 
others;  in  which  case  I  should  feel  it  both  a  privi- 
lege and  a  duty  to  take  that  stand  which,  in  my 
view,  might  tend  most  to  the  advancement  of 
justice." 

Could  not  this  be  twisted  into  an  assertion  that 
he  might,  under  certain  circumstances,  side  with 
those  who  assailed  the  laws?  A  deplorably  anar- 
chical statement  if  law  be  superior  to  justice. 
But  it  is  precisely  because  Lincoln  never  acted 
upon  any  such  theory  that  his  legal  career  is 
noteworthy  and  exceptional.  He  never  surren- 
dered his  conscience  to  a  code;  his  sense  of  jus- 
tice was  never  cowed  by  the  tyranny  of  "leading 
cases";  and  the  decision  of  the  highest  court  in 
the  world  never  succeeded  in  convincing  him  that 
wrong  was  right. 

His  attitude  on  this  subject  was  fully  ex- 
plained a  few  years  later,  in  an  address  delivered 
before  the  Young  Men's  Lyceum  at   Springfield, 

43 


LINCOLN  THE  LAWYER 

when,  after  urging  that  reverence  for  the  law 
should  be  "the  political  religion  of  the  nation/' 
he  defined  his  position  in  these  strangely  pro- 
phetic words: 

"But  when  I  so  pressingly  urge  a  strict  ob- 
servance of  all  laws,  let  me  not  be  understood  as 
saying  that  there  are  no  bad  laws,  or  that  griev- 
ances may  not  arise  for  the  redress  of  which  no 
legal  provisions  have  been  made.  I  mean  to  say 
no  such  thing.  But  I  do  mean  to  say  that  al- 
though bad  laws,  if  they  exist,  should  be  re- 
pealed as  soon  as  possible,  still  while  they  con- 
tinue in  force,  for  the  sake  of  example,  they 
should  be  religiously  observed.  In  any  case  that 
may  arise,  as,  for  instance,  the  promulgation  of 
abolitionism,1  one  of  two  propositions  is  neces- 
sarily true; — that  is,  the  thing  is  right  within 
itself  and  therefore  deserves  the  protection  of 
all  law  and  all  good  citizens — or  it  is  wrong  and 
therefore  proper  to  be  prohibited  by  legal  enact- 
ments ;  and  in  neither  case  is  the  interposition  of 
mob  law  either  necessary,  justifiable,  or  excus- 
able." 

These  wonderfully  significant  sentences  were 

1  The  italics  are  the  author's.    This  speech  was  delivered 
January  27,  1837. 

44 


EARLY  APTITUDES 

penned  before  Lincoln  had  reached  his  maturity, 
before  he  had  actively  entered  on  the  practice  of 
the  law,  before  the  Fugitive  Slave  Law  was  an 
issue,  and  long  before  the  Dred  Scott  case  was 
dreamed  of. 

We  shall  have  occasion  to  see  that  his  theories 
were  tested  in  the  most  practical  manner  by  the 
very  situation  which  he  invoked  as  illustration, 
and  to  note,  in  his  professional  attitude,  a  mas- 
terful distinction  between  bowing  to  legal  au- 
thority and  submitting  tamely  to  its  decrees. 


45 


VI 


LINCOLN   THE   LAW   STUDENT 

THE  quality  of  the  talk  which  passed  over 
the  counters  of  Offutt's  store  was  probably 
superior  to  the  quality  of  its  merchandise,  for, 
despite  the  remarkable  popularity  of  the  sales- 
man, the  business  dwindled  until  it  finally 
"winked  out,"  as  Lincoln  said  of  one  of  his  later 
ventures. 

At  this  crisis,  however,  an  event  occurred 
which  set  all  the  country  talking,  and  the  passing 
of  the  village  emporium  was  scarcely  noticed. 
Black  Hawk,  an  Indian  chief,  was  reported  to 
be  on  the  war-path,  and  the  governor  of  the 
State  hastily  called  for  volunteers.  Lincoln 
instantly  responded,  and  was  subsequently 
elected  captain  of  his  company — a  success  which, 
he  declared,  gave  him  more  pleasure  than  any  of 
the  honors  which  afterward  fell  to  his  lot. 

The  so-called  Black  Hawk  War  lasted  only  a 

46 


THE  LAW  STUDENT 

few  weeks.  It  was  in  many  ways  a  ridiculous, 
if  not  contemptible  affair,  and  Lincoln  did  not 
reach  the  front  until  it  was  virtually  over.  His 
company  was  disbanded  shortly  after  it  was 
formed,  but  he  reenlisted  as  a  private  for  the 
remainder  of  the  campaign,  and  was  finally  mus- 
tered out  by  a  young  lieutenant  of  the  regular 
army  whom  he  was  destined  to  meet  again  under 
more  dramatic  auspices— Major  Robert  Ander- 
son, the  commander  of  Fort  Sumter. 

It  was  characteristic  of  the  man  that  at  a  time 
when  military  titles  were  the  fashion  Lincoln 
did  not  retain  his,  and  never  would  permit  any 
one  to  address  him  as  captain.  Indeed,  years 
afterward,  when  congressmen  attempted  to 
make  political  capital  for  General  Cass  out  of 
that  gentleman's  not  too  distinguished  record  in 
the  War  of  1812,  he  disposed  of  the  pretensions 
with  a  laugh  at  his  own  military  history. 

"By  the  way,  Mr.  Speaker,"  he  began  with 
deep  gravity,  "did  you  know  that  I  was  a  military 
hero?  Yes,  sir.  In  the  days  of  the  Black  Hawk 
War  I  fought,  bled,  and  came  away.  .  .  I  was 
not  at  Stillman's  defeat,  but  I  was  about  as  near 
to  it  as  Cass  was  to  Hull's  surrender,  and,  like 
him,  I  saw  the  place  very  soon  afterward.    .    .    . 

47 


LINCOLN  THE  LAWYER 

If  General  Cass  went  in  advance  of  me  in  pick- 
ing huckleberries,  I  guess  I  surpassed  him  in 
charges  upon  the  wild  onions.  If  he  saw  any 
live,  fighting  Indians,  it  was  more  than  I  did; 
but  I  had  a  good  many  bloody  struggles  with  the 
mosquitos.  Mr.  Speaker,  if  I  should  ever  con- 
clude to  doff  whatever  our  Democratic  friends 
may  suppose  there  is  of  black-cockade  Feder- 
alism about  me,  and  thereupon  they  shall  take  me 
up  as  their  candidate  for  the  Presidency,  I  pro- 
test they  shall  not  make  fun  of  me,  as  they  have 
of  General  Cass,  by  attempting  to  write  me  into 
a  military  hero."1 

Farcical  as  this  campaign  was,  it  had,  never- 
theless, an  important  bearing  on  Lincoln's  pro- 
fessional career ;  for  it  brought  him  to  the  notice 
of  his  future  law  partner,  Ma j or  John  T.  Stuart, 
one  of  the  Springfield  volunteers,  and  it  was  the 
major's  friendly  advice  and  use  of  his  small 
law  library  which  encouraged  the  ex-clerk  to  pur- 
sue his  legal  studies. 

The  political  canvass  in  Illinois  was  almost 
over  when  the  "veteran"  of  the  Black  Hawk 
War  returned  to  New  Salem;  but  there  was  still 
time  to  make  a  few  speeches  in  aid  of  his  candi- 

1  Congressional  Record  of  July  27,  1848. 

48 


THE  LAW  STUDENT 

dacy  for  the  State  legislature,  and  he  threw  him- 
self into  the  contest  with  vigor  and  spirit.  When 
the  votes  were  counted,  however,  he  found  him- 
self rejected— the  first  and  only  time  he  was  ever 
defeated  by  direct  popular  vote. 

But  Lincoln  had  stated  in  the  circular  announc- 
ing his  candidacy  that  if  the  people  should  see 
fit  to  keep  him  in  the  background,  he  was  too 
familiar  with  disappointments  to  be  very  much 
chagrined,  and  there  is  no  indication  that  he  was 
particularly  discouraged  at  the  result,  although 
it  compelled  him  to  seek  immediate  employment, 
and  interfered  to  that  extent  with  his  prepara- 
tion for  the  bar.  He  had  to  earn  his  living,  but 
if  he  could  find  work  which  would  allow  him 
some  leisure  for  study,  he  did  not  care  much  what 
it  was  and  when  a  dissolute  fellow  named  Berry, 
who  had  purchased  an  interest  in  a  grocery-store, 
proposed  a  partnership,  Offutt's  ex-clerk  grasped 
the  opportunity. 

A  more  ill-assorted  couple  than  Berry  and 
Lincoln  it  would  be  difficult  to  imagine  but  their 
ideas  of  the  partnership  were  mutually  satisfac- 
tory. The  senior  partner  drank  up  all  the  profits 
of  the  business,  and  the  junior  member  devoted 
himself  to  the  study  of  law.     As  might  be  ex- 

49 


LINCOLN  THE  LAWYER 

pected,  this  division  of  the  labors  and  responsi- 
bilities of  shopkeeping  was  not  highly  remunera- 
tive, and  Lincoln  afterward  remarked  that  the 
best  stroke  of  business  he  ever  did  in  the  grocery 
line  was  when  he  bought  an  old  barrel  from  an 
immigrant  for  fifty  cents  and  discovered  under 
some  rubbish  at  the  bottom  a  complete  set  of 
Blackstone's  Commentaries.  That  was  a  red-let- 
ter day  in  his  life,  and  we  have  his  own  word  for 
it  that  he  literally  devoured  the  volumes.  They 
must,  indeed,  have  been  refreshing  after  the 
dry  Indiana  statutes;  and  if  Lincoln's  choice  of 
a  profession  must  be  attributed  to  a  law-book, 
no  more  plausible  selection  than  Blackstone's 
Commentaries  could  possibly  be  made. 

Berry  &  Lincoln  virtually  lived  on  their  stock 
of  merchandise,  Berry  drinking  and  Lincoln 
eating  it  up,  and  matters  soon  reached  a  crisis 
which  drove  the  junior  partner  into  the  fields 
again,  where  he  undertook  all  sorts  of  rough 
farm  labor,  from  splitting  rails  to  plowing.  As  a 
man-of -all-work,  however,  Lincoln  did  not  prove 
altogether  satisfactory  to  his  employers.  He 
was  too  fond  of  mounting  stumps  in  the  field 
and  "practising  polemics"  on  the  other  farm- 
hands, and  there  was  something  uncomfortable 

50 


THE  LAW  STUDENT 

about  a  plowman  who  read  as  he  followed  the 
team,  no  matter  how  straight  his  furrows  ran. 
Such  practices  were  irritating,  if  not  presump- 
tuous, and  there  is  a  well-known  story  about  a 
farmer  who  found  "the  hired  man"  hying  in  a 
field  beside  the  road,  dressed  in  his  not  too 
immaculate  farm  clothes,  with  a  book  instead  of 
a  pitchfork  in  his  hand. 

"What  are  you  reading?"  inquired  the  old 
gentleman. 

"I'm  not  reading;  I'm  studying,"  answered 
Lincoln,  his  wonderful  eyes  still  on  the  pages  of 
his  book. 

"Studying  what?" 

"Law,  sir." 

The  old  man  stared  at  the  speaker  for  a 
moment  in  utter  amazement. 

"Great— God— Almighty!"  he  muttered  as  he 
passed  on,  shaking  his  head. 

But  even  with  odd  jobs  and  the  postmaster- 
ship  of  New  Salem,1  Lincoln  could  scarcely 
make  ends  meet,  and  he  was  glad  to  receive  the 
appointment  of  deputy  to  Calhoun,  the  county 

1  This  appointment,  "too  insignificant  to  make  polities  an  ob- 
jection," was  received  in  May,  1838,  from,  the  Jackson  administra- 
tion, and  it  was  the  only  Federal  patronage  which  Lincoln  ever 
enjoyed. 

51 


UNIVERSITY  OF  ILLINC 
LIBRARY 


LINCOLN  THE  LAWYER 

surveyor.  He  was  sorely  in  need  of  the  salary, 
but  he  would  not  accept  the  office  under  any 
misunderstanding.  With  characteristic  frank- 
ness he  admitted  that  he  knew  nothing  about  sur- 
veying, and  explained  that  he  was  not  of  his 
employer's  political  faith.  Being  assured,  how- 
ever, that  his  politics  made  no  difference,  he 
applied  himself  to  the  study  of  surveying,  and  so 
well  did  he  qualify  himself  for  the  work  that 
none  of  his  surveys  was  ever  questioned,  and 
the  information  he  acquired  stood  him  in  good 
stead  when  he  came  to  practice  law.  One  of  his 
legal  opinions  on  a  question  of  surveying  is  in 
existence  to-day. 

Meanwhile  what  remained  of  the  grocery  busi- 
ness was  sold  on  credit.  The  purchasers 
defaulted,  and  Berry  died,  leaving  his  partner  to 
shoulder  all  the  not  inconsiderable  debts. 

Credit  in  those  days  was  freely  extended,  and 
it  was  not  considered  dishonorable  to  evade  the 
payment  of  claims  which  passed  into  the  hands 
of  speculators.  Berry  &  Lincoln  had  obtained 
very  little  when  they  purchased  the  grocery, 
and  the  sellers  probably  parted  with  the  firm's 
notes  for  a  small  fraction  of  their  face  value. 
The  men  who  bought  paper  of  that  sort  usually 
sold  it  again  at  the  first  opportunity  or  traded  it 

52 


JU^  JLZZZ*^  ^5&~.—      ofi&C  ^w.   Jie^f  a^  /£*->   *&?  /t5^ 

t>7>w»^    ^(^    /^Ly-O  JUX-^      >V  /&%Ou/h    /£?£&   frZU*    ,-1^4/  ^gv- 
dx*s-i-c6<*~jr       /^£lo       ftu^C^JlXZ,       _fl«~j     /iJS^/  ^^_c^3U/     ^^-e^Oi 

yl?fZZa*~pA>     £&Cr  ^c^~^-j    ^tv-rw-   y&&    0ftyur>^<j     o^^a^^Zj  /i^cA^^j 
CiO^t*-^    ^i-^Uw^j    /£*^    /x^jyZZ    yv-7taw     /&~c^,    /24«JZ^Zi,£t^ 

C4*~Cc^/    ofj^™  Sz!Lcs<~<^J  __. 


A  legal  opinion  from  Lincoln  on  a  question  of  surveying 


LINCOLN  THE  LAWYER 

off  for  something  else,  and  thus  it  passed  from 
hand  to  hand  until  some  speculator  who  had  ob- 
tained it  for  nothing  or  next  to  nothing  appeared 
and  demanded  the  uttermost  farthing.  Naturally, 
this  dubious  business  encouraged  evasion  of 
the  debts,  and  public  opinion  countenanced 
the  repudiations.  But  to  Lincoln  a  promise 
was  a  promise,  and  although  the  action  of  one  of 
the  parties  who  had  acquired  his  and  Berry's 
notes  was  particularly  contemptible,  he  stooped 
to  neither  compromise  nor  evasion.  Little  by 
little  he  reduced  the  claims,  and  fourteen  years 
afterward  he  devoted  part  of  his  salary  as  con- 
gressman to  this  purpose,  and  finally  extin- 
guished what  he  jestingly  termed  his  "national 
debt." 

In  these  days,  when  lawyers  of  high  standing 
lend  themselves  to  the  thousand  and  one  trick- 
eries by  which  bankruptcy  has  become  a  new  way 
to  pay  old  debts,  when  influential  firms  accept 
retainers  from  insolvent  clients  who  retain  their 
memberships  in  fashionable  clubs,  and  manag- 
ing clerks  are  encouraged  to  make  "affidavits  of 
merit"  on  behalf  of  such  gentry,  it  is  refreshing 
to  think  of  the  struggling  Illinois  law  student 
who  refused  to  take  advantage  of  the  law. 

54 


THE  LAW  STUDENT 

This  episode  would  be  of  merely  passing  inter- 
est did  it  not  foreshadow  Lincoln's  conduct  when 
face  to  face  with  the  countless  temptations  and 
sophistries  of  the  profession.  It  is  important 
solely  because  it  is  illustrative  and  characteristic 
of  his  entire  legal  career,  and  it  will  be  seen  that  he 
never  consented  to  do  anything  in  a  representa- 
tive capacity  which  he  would  not  countenance 
in  himself  as  an  individual,  that  he  maintained  the 
ideals  of  advocacy  in  his  daily  contact  with  the 
legal  world,  and  made  no  sacrifice  of  private 
principles  in  his  long  and  active  experience.  In 
a  word,  he  proved  the  ideals  of  his  profession  to 
be  practical.  Had  he  no  other  claim  to  recogni- 
tion, that  service  alone  should  entitle  him  to  the 
thanks  of  every  honest  member  of  his  profession, 
and  to  far  higher  standing  than  that  assigned  to 
many  acknowledged  leaders  of  the  bar.  It  will 
be  demonstrated,  however,  that  honor  and  in- 
tegrity were  not  the  only  rare  legal  qualities 
which  distinguished  Lincoln  the  lawyer  in  his 
three-and-twenty  years  of  practice. 


55 


VII 

ADMISSION    TO    THE    BAR.      THE    PRIMITIVE 
BENCH  AND  BAR  OF  ILLINOIS 

HIS  duties  as  surveyor  carried  Lincoln  to  all 
parts  of  Sangamon  County  and  widened 
his  acquaintance  until,  in  1834,  he  felt  himself 
strong  enough  to  make  another  canvass  for  the 
legislature.  This  time  he  was  successful  beyond 
his  hopes,  securing  more  votes  than  any  other  can- 
didate save  one;  and  some  idea  of  the  esteem  in 
which  his  neighbors  held  him  may  be  gathered 
from  the  result  in  New  Salem,  where  he  received 
208  out  of  the  211  ballots  cast,  a  tribute  which 
proves  that  a  man  is  sometimes  a  prophet  even 
in  his  own  country. 

The  duties  of  a  State  legislator  in  those  days 
were  even  less  confining  than  they  are  now,  and 
although  the  remuneration  was  small,  it  enabled 
Lincoln  to  drop  his  surveying  work  and  devote 

56 


ADMISSION  TO  THE  BAR 

his  entire  leisure  to  the  law.  He  had  already 
begun  to  practise  in  an  apprentice  way,  occasion- 
ally drawing  deeds  and  bills  of  sale  for  his  neigh- 
bors and  "pettifogging"  before  Justice  Bowling 
Green;  and  biographers,  better  acquainted  with 
literary  values  than  with  law,  have  seized  upon  the 
fact  that  he  was  not  paid  for  this  work  to  illustrate 
his  generosity  and  helpfulness.  One  of  the 
recent  histories  states  that,  "poor  as  he  was,  he 
never  accepted  a  fee  for  such  services,  because 
he  felt  that  he  was  fully  paid  by  the  expe- 
rience." 

Probably  it  more  than  paid  him,  but  in  view  of 
the  Illinois  law  which  imposes  a  heavy  penalty 
on  unlicensed  persons  who  accept  compensation 
for  attorney  work,  and  in  the  light  of  similar 
provisions  in  the  Indiana  Revised  Statutes,  which 
Lincoln  is  supposed  to  have  memorized,  chapter, 
page  and  verse,  the  attempt  to  praise  his  for- 
bearance makes  a  ludicrous  virtue  of  necessity.1 
Lincoln,  it  will  be  remembered,  protested  that  no 
pseudo-partizans  of  his  should  ever  make  fun  of 

i  The  Indiana  statute  forbidding  unlicensed  persons  to  practise 
law  under  penalties  is  contained  in  the  Revision  of  1824,  under 
chap,  viii,  sec.  9,  and  in  the  Revision  of  '31,  on  p.  86. 

The  Illinois  law,  in  substantially  the  same  language  used  in  the 
Indiana  statute,  is  set  forth  in  the  Revision  of  1833,  at  p.  102, 
and  in  the  Revision  of  '45,  in  chap,  xi,  seen,  p.  74. 

57 


LINCOLN  THE  LAWYER 

him  by  trying  to  write  him  into  a  military  hero; 
but  he  could  not  protect  himself  on  every  side, 
and  his  friends,  the  eulogists,  have  certainly  done 
their  best  to  make  him  ridiculous. 

At  the  next  election  the  young  law  student 
was  again  a  candidate  for  the  legislature,  and  his 
friends  were  so  anxious  for  his  success  that  they 
raised  two  hundred  dollars  to  defray  the  expenses 
of  a  thorough  canvass.  He  was  triumphantly 
elected  at  the  head  of  the  poll,  and  returned  one 
hundred  and  ninety-nine  dollars  and  twenty-five 
cents  of  the  campaign  fund,  stating  to  the  sub- 
scribers that  his  total  outlay  had  been  only  sev- 
enty-five cents.  His  plurality  at  this  election 
was  even  more  a  personal  tribute  than  the  vote 
of  the  previous  year,  for  his  services  during  his 
first  term  in  the  legislature  had  not  been  remark- 
able. Indeed,  there  is  nothing  particularly  note- 
worthy in  his  legislative  record  from  beginning 
to  end,  except  as  it  illustrates  his  growing  polit- 
ical sagacity  and  genius  for  leadership. 

It  was  at  the  close  of  his  second  term  in  March, 
1837,  that  he  moved  to  Springfield.  He  was 
then  in  his  twenty-ninth  year,  vigorous  in  body, 
serious-minded,  and  developing  intellectually 
with  every  fresh  mental  impulse.    He  arrived  at 

58 


ADMISSION  TO  THE  BAR 

the  new  State  capital1  without  money  and  with 
no  baggage  to  speak  of,  but  soon  found  himself 
among  friends.  Joshua  Speed,  a  prosperous 
merchant,  offered  to  share  his  lodging  with  the 
embryo  lawyer,  and  was  promptly  taken  at  his 
word. 

This  arrangement  was  merely  temporary,  for 
a  few  days  later  Major  Stuart,  in  whose  office 
Lincoln  had  served  an  informal  legal  appren- 
ticeship, offered  him  a  partnership,  and  the  firm 
of  Stuart  &  Lincoln  entered  on  the  practice  of 
law,  the  junior  partner,  for  a  time,  literally  living 
in  the  office. 

It  is  improbable  that  Lincoln  was  obliged  to 
pass  any  examination  for  admission  to  the  bar. 
Certainly  there  is  no  record  of  any  such  for- 
mality, and  the  existing  statutes  did  not,  in  ex- 
press terms,  provide  for  it.  There  was,  however,  a 
provision  which  permitted  attorneys  from  other 
States  to  be  licensed  without  examination,  which 
suggests  that  native  candidates  may  have  been 
subjected  to  some  sort  of  mental  test2.  Cer- 
tainly ten  or  fifteen  years  later,  Lincoln  himself 

1  Vandalia  was  the  former  capital.  It  was  changed  to  Spring- 
field largely  through  Lincoln's  efforts. 

2  Rule  XXX  of  the  Illinois  Supreme  Court,  adopted  March  1, 
1841,  about  five  years  after  Lincoln  was  admitted,  provided  that 
all  applicants  for  a  license  to  practise  law  be  required  to  present 

59 


LINCOLN  THE  LAWYER 

was  appointed  by  the  court  to  examine  appli- 
cants; but  the  requirements,  even  at  that  date, 
were  not  very  severe,  and  about  the  most  impor- 
tant question  which  a  novitiate  had  to  answer  was 
what  he  proposed  to  do  for  the  bar  in  the  way  of 
an  initiatory  "treat,"  and  this  took  every  form, 
from  a  dinner  to  drinks  all  around.1 

The  date  of  Lincoln's  admission  to  the  bar  has 
been  so  frequently  misstated  that  it  may  be  well 
to  give  the  record  in  full.  It  is  contained  in 
Record  C  of  the  Circuit  Court  of  Sangamon 
County,  on  page  173,  where,  under  the  date  of 
March  24,  1836,  the  Hon.  Stephen  T.  Logan 
presiding,  "it  is  ordered  by  the  court  that  it  be 
certified  that  Abraham  Lincoln  is  a  person  of 
good  moral  character,"  and  the  clerk's  minutes 
of  the  same  term  of  court  contain  the  following 
entry:  "Ordered  that  it  be  certified  to  all  whom 
it  may  concern  that  Abraham  Lincoln  is  a  man 

themselves  in  person  for  examination  in  open  court.  At  the 
July  term  of  the  same  .year,  however,  this  rule  was  bitterly  at- 
tacked by  old  Judge  Ford,  who  did  not  believe  in  restricting  the 
membership  of  the  bar,  and  the  rule  above  quoted  was  rescinded, 
despite  the  objections  of  Justices  Treat  and  Douglas,  who  re- 
corded their  dissent  from  the  order  of  rescission. 

1  Judge  R.  M.  Benjamin,  of  Bloomington,  Illinois,  is  probably 
the  only  lawyer  now  living  whom  Lincoln  examined  for  admission 
to  the  bar.  In  an  interview  with  the  writer  the  judge  described 
the  proceedings  as  being  extremely  informal,  but  stated  that  Mr. 
Lincoln  did  not  suggest  to  him  any  "initiation." 

60 


ADMISSION  TO  THE  BAR 

of  good  moral  character." *  His  name,  however, 
does  not  appear  on  the  roll  of  attorneys  until 
September  9,  1836,  and  this  was  not  published  in 
the  reports  until  March,  1837,  which  has  led  to 
much  confusion,  and  conflicting  statements  in 
the  biographies.  There  is  no  doubt,  however, 
that  he  was  legally  qualified  on  March  24,  183G, 
and  his  professional  life  properly  dates  from 
that  day. 

Illinois  was  only  just  emerging  from  the  con- 
dition of  a  frontier  State  in  1836,  and  all  depart- 
ments of  the  government  were  still  very  simply 
administered.  The  judges  were,  in  some  respects, 
superior  to  their  brethren  of  Indiana,  but  they 
were  not  overburdened  with  learning,  and  al- 
though Governor  Ford's  "History  of  Early 
Illinois"  records  the  names  of  half  a  dozen  attor- 
neys of  reputed  ability  and  scholarship,  it  is 
doubtful  if  the  rank  and  file  of  the  primitive  bar 

l  Such  orders  were  usually  made  on  the  recommendation  of  one 
or  more  persons,  who  signed  a  paper  certifying  to  the  court  that 
the  applicant  was  of  good  moral  character.  If  this  was  done  in 
Lincoln's  case,  it  would  he  interesting  to  know  who  signed  his 
certificate;  but  after  an  exhaustive  search  in  the  Circuit  and 
Supreme  Court  records  in  Springfield  the  writer  has  been  unable  to 
find  any  of  the  original  papers  touching  Lincoln's  admission  to 
the  bar;  and,  from  the  neglected  condition  of  other  documents 
in  these  courts  of  about  the  same  date,  he  is  of  the  opinion 
that  these  historical  papers  have  been  lost  or  destroyed. 

61 


LINCOLN  THE  LAWYER 

knew   much   more   law   than   laymen   of   equal 
intelligence. 

Most  of  the  Illinois  court-houses  were  log-built, 
as  in  Indiana,  but  in  some  districts  the  sessions 
were  held  in  the  bar-rooms  of  taverns,  and  the  ab- 
sence of  all  formality  in  the  proceedings  is  best 
illustrated  by  the  fact  that  in  the  Circuit  Court  of 
Washington  County,  held  by  Judge  John  Rey- 
nolds, the  sheriff  usually  heralded  his  Honor  by 
singing  out:  "Come  in,  boys!  Our  John  is 
a-goin'  to  hold  court!"  to  which  cordial  invi- 
tation those  having  business  with  the  law  re- 
sponded. 

Another  sheriff  in  Union  County  made  a  laud- 
able efforts  to  meet  the  requirements  of  the  occa- 
sion by  shouting  this  singular  announcement: 

"O,  yes!  O,  yes!  O,  yes!  The  honorable  judge 
is  now  opened!" 

Both  the  bench  and  the  bar  had  become  com- 
paratively dignified  by  the  time  Lincoln  was 
admitted  to  practise;  but  Governor  Ford,  writ- 
ing at  a  much  later  day,  expressed  a  fine  scorn  of 
all  formalities,  and  his  comments  indicate  that 
the  Illinois  courts  were  not  offensively  ceremo- 
nious even  in  the  fifties. 

"In  some  countries,"  he  complacently  observes, 

62 


From  a  portrait  owned  by  the  Illinois  Historical  Society 

Judge  John  Reynolds 
A  typical  judge  of  the  primitive  Illinois  courts 


PRIMITIVE  ILLINOIS  COURTS 

"the  people  are  so  ignorant  or  stupid  that  they 
have  to  be  humbugged  into  a  respect  for  the 
institutions  and  tribunals  of  the  State.  The 
judges  and  lawyers  wear  robes  and  gowns  and 
wigs,  and  appear  with  all  'the  excellent  gravity' 
described  by  Lord  Coke.  Wherever  means  like 
these  are  really  necessary  to  give  authority  to 
government,  it  would  seem  that  the  bulk  of  the 
people  must  be  in  a  semi-barbarous  state  at 
least." 

There  was  certainly  nothing  barbarous  about 
the  administration  of  the  criminal  law  in  Illinois 
before  that  State  became  what  we  call  civilized. 
Indeed,  the  judges  were  humane  to  a  fault,  and 
whenever  it  became  necessary  for  them  to  sen- 
tence a  prisoner,  they  were  careful  to  state  that 
they  were  but  the  humble  agencies  of  justice. 
Possibly  this  extreme  modesty  reflected  a  whole- 
some self -depreciation,  but  there  is  just  a  chance 
that  it  evidenced  a  live  regard  for  their  own  per- 
sonal safety.  In  any  event,  it  is  a  fact  that  the 
judiciary  assumed  no  unnecessary  responsibility. 
In  the  case  of  the  People  vs.  Green  the  jury  con- 
victed the  defendant  of  murder,  and  the  learned 
judge, — later  a  governor  of  the  State, — was  ob- 
liged to  pronounce  the  death-sentence. 

65 


LINCOLN  THE  LAWYER 

"Mr.  Green,"  he  began,  addressing  the  pris- 
oner, "the  jury  in  their  verdict  say  you  are  guilty 
of  murder,  and  the  law  says  you  are  to  be  hung. 
Now  I  want  you  and  all  your  friends  down  on 
Indian  Creek  to  know  that  it  is  not  I  who  con- 
demn you,  but  the  jury  and  the  law.  Mr.  Green, 
the  law  allows  jrou  time  for  preparation,  so  the 
Court  wants  to  know  what  time  you  would  like 
to  be  hung." 

The  prisoner  "allowed"  it  made  no  difference 
to  him,  but  his  Honor  did  not  appreciate  this 
freedom  of  action. 

"Mr.  Green,  you  must  know  it  is  a  very  serious 

matter    to    be    hung,"    he     protested    uneasily. 

'You  'd  better  take  all  the   time   you   can  get. 

The   Court  will   give  you  until  this   day   four 

weeks,"  he  added  tentatively. 

The  prisoner  made  no  response,  but  Mr.  James 
Turney,  the  prosecutor,  apparently  thinking  the 
scene  lacked  impressiveness,  rose  and  addressed 
the  bench. 

"May  it  please  the  court,"  he  began,  "on  sol- 
emn occasions  like  the  present  it  is  usual  for  the 
Court  to  pronounce  formal  sentence,  in  which  the 
leading  features  of  the  crime  shall  be  brought 
to  the  recollection  of  the  prisoner,  and  a  sense  of 

66 


PRIMITIVE  ILLINOIS  COURTS 

guilt  impressed  upon  his  conscience,  and  in  which 
he  shall  be  duly  exhorted  to  repentance  and 
warned  against  the  judgment  in  a  world  to 
come." 

"Oh,  Mr.  Turney,"  the  judge  interrupted  tes- 
tily, "Mr.  Green  understands  the  whole  matter  as 
well  as  if  I  had  preached  to  him  a  month.  Lie 
knows  he  's  got  to  be  hung  this  day  four  weeks. 
You  understand  it  that  way,  Mr.  Green,  don't 
you?"  he  added,  appealing  to  the  prisoner. 

"Mr."  Green  nodded,  and  the  court  adjourned. 

Now  it  may  be  that  this  cautious  magistrate 
had  too  much  consideration  for  the  prisoner's 
sensitive  friends  on  Indian  Creek,  but  our 
modern  jurists,  who  admittedly  have  the  courage 
of  their  convictions,  might  take  a  useful  hint 
from  his  reticence,  for  if  criminals  derive  any 
benefit  from  judicial  lectures  or  warnings,  the 
evidence  of  that  fact  has  not  yet  been  forthcom- 
ing. 

But  the  pioneer  judges  were  prudent  in  civil 
as  well  as  in  criminal  cases.  They  never 
instructed  the  jurors  on  the  legal  effect  of  testi- 
mony, and  rarely  told  them  what  they  could  or 
could  not  find  from  the  facts.  Occasionally, 
however,  some   Solon,  bolder  than  his  fellows, 

67 


LINCOLN  THE  LAWYER 

would  depart  from  this  noncommittal  practice, 
with  results  not  always  satisfactory.  In  one  case 
a  judge  who  desired  to  display  his  learning 
instructed  the  jury  very  fully,  laying  down  the 
law  with  didactic  authority;  but  the  jurors,  after 
deliberating  some  hours,  were  unable  to  agree. 
Finally  the  foreman  rose  and  asked  for  addi- 
tional instructions.   . 

"Judge,  this 'ere  is  the  difficulty,"  he  explained. 
'The  jury  want  to  know  if  that  thar  what  you 
told  us   was  r'al'y  the  law,   or  on'y  jist  your 
notion.1' 

These  frontier  proceedings  were  undoubtedly 
crude,  but  they  reflected  the  common  sense  of  the 
people,  and  it  is  fairly  debatable  whether  the 
modern  practice  displays  any  marked  advan- 
tage over  the  primitive  methods.  Certainly 
every  legal  appeal  of  to-day  echoes  the  fore- 
man's question,  and  only  too  frequently  the  high- 
est tribunals  inform  us,  after  years  of  waiting, 
that  what  we  received  from  the  court  below  was 
not  really  the  law,  but  "on'y  jist  the  notion"  of  a 
trial  judge. 

Picturesque  as  was  this  old  regime,  and  prac- 
tical as  it  was  for  pioneer  conditions,  it  speedily 
yielded  to  the  march  of  progress,  and  when  Lin- 

68 


PRIMITIVE  ILLINOIS  COURTS 

coin  joined  the  ranks  of  the  profession  it  had 
virtually  disappeared.  Already  the  log  court- 
houses had  given  way  to  frame-buildings1  and 
structures  of  brick,  and  the  steadily  increasing 
immigration  was  bringing  legal  talent  of  a 
higher  order  than  the  State  had  ever  known.  A 
new  generation  of  judges  and  lawyers  was  soon 
to  control  the  administration  of  justice,  and 
before  many  years  the  local  bar  of  Springfield 
was  to  produce  jurists  and  statesmen  of  national 
repute. 

i  It  has  frequently  been  stated  that  Lincoln  practised  in  some 
of  the  old  log  court-houses,  but  from  his  personal  investigations 
in  the  judicial  districts  about  Springfield,  the  writer  is  of  the 
opinion  that  all  the  courts  which  Lincoln  attended  during  his 
early  practice  were  housed  in  comparatively  modern  buildings. 


69 


VIII 

Lincoln's  first  partnership 

"[YJAJOR  STUART,  with  whom  Lincoln 
■L~ ■**  had  joined  forces,  was  not,  in  his 
early  years,  a  well-read  or  even  an  indus- 
trious lawyer,  but  he  was  popular  and  had 
an  extensive,  if  not  very  lucrative,  practice, 
which  he  was  entirely  willing  to  intrust  to 
his  new  associate.  Indeed  when  the  firm  was 
formed  he  was  so  deeply  engrossed  in  politics 
that  he  gave  little  or  no  attention  to  the  law,  and 
Lincoln  had  to  assume  virtually  all  responsibility 
for  the  business. 

Of  course,  if  the  procedure  had  been  compli- 
cated or  technical,  a  novice  would  have  speedily 
come  to  grief;  but  the  character  of  litigation  was 
very  simple  in  those  days,  the  precedents  were 
few  and  far  between,  and  the  local  forms  exceed- 
ing elastic.  Lincoln  met  such  difficulties  as 
there  were  in  his  own  way,  asking  as  little  advice 
as  possible  and  exercising  his  ingenuity  to  bridge 

70 


Hon.  John  T.  Stuart 


FIRST  PARTNERSHIP 

the  gaps  in  his  information  when  his  partner 
was  not  available  for  consultation.  The  habit  of 
standing  on  his  own  feet  and  doing  his  own 
thinking,  which  was  thus  forced  upon  him  at  the 
very  outset  of  his  practice,  became  his  most  no- 
table trait.  One  of  his  contemporaries  closely  in 
touch  with  his  professional  life  testifies  that  he 
never  asked  another  lawyer's  advice  on  any  sub- 
ject whatsoever.  He  listened  to  his  associates 
and  consulted  with  them,  but  he  worked  out  his 
own  problems,  and  there  was  never  anything  of 
the  "brain-tapper"  about  his  relations  with  the 
bar. 

The  influence  of  this  early  training  is  plainly 
discernible  in  the  remarkable  self-reliance  and 
resourcefulness  which  he  exhibited  in  his  later 
years.  New  questions  did  not  confuse  him;  he 
faced  emergencies  with  perfect  serenity,  and  he 
had  long  been  accustomed  to  responsibility  when 
he  was  called  upon  to  decide  questions  of  national 
import. 

Springfield,  the  new  capital  of  Illinois,  was  a 
mere  village  when  Stuart  &  Lincoln  hung  out 
their  shingle.  The  state-house  had  not  been 
built,  the  sessions  of  the  legislature  were  held 
in    a    church,    and    the    houses    were    scattered 

73 


LINCOLN  THE  LAWYER 

and  poorly  constructed.     The  business  centered 
around  a  vacant  plot  of  ground  which  passed  for 


Office  of  Stuart  &  Lincoln  as  it  is  to-day1 

a  public  square,  and  many  of  the  lawyers'  offices 
were  "in  their  hats." 

Lincoln's  partner,  however,  was  a  person  of 

1  This  is  No.  109  North  Fifth  street,  the  only  surviving  section  of 
the  old  "Hoffman  Row,"  on  the  second  floor  of  which  Stuart  & 
Lincoln  had  their  office.  According  to  tradition,  this  is  that  part 
occupied  by  the  law  firm.  The  section  adjoining  on  the  north  was 
recently  torn  down  to  make  room  for  a  modern  structure. 

74 


FIRST  PARTNERSHIP 

some  importance  in  the  community,  and  his  office 
was  situated  in  Hoffman's  Row,  over  what  was 
then  the  county  court-house.  Compared  with 
the  luxury  and  convenience  of  modern  law- 
chambers,  the  appointments  of  this  office  seem 
somewhat  meager.  The  furniture  consisted  of  a 
roughly-made  table,  a  few  chairs,  a  lounge,  a 
bench,  and  an  old  wood-stove,  and  the  library  com- 
prised five  Illinois  Reports  and  about  twenty  vol- 
umes of  miscellaneous  law-books,  legislative  re- 
ports, and  congressional  documents,  arranged  on 
clumsy  board  shelves  nailed  to  the  bare  walls. 
Inadequate  as  this  equipment  may  appear,  it  was 
superior  to  that  of  the  average  country  practi- 
tioner. Indeed,  Mr.  Conkling,  in  his  legal  remi- 
niscences of  Chicago,  states  that  there  were  not  at 
that  time  half  a  dozen  law  libraries  in  the  city 
which  could  boast  a  hundred  volumes,  and  that 
the  Revised  Statutes,  the  Illinois  Form-book, 
and  a  few  elementary  treatises  constituted  the 
usual  legal  outfit. 

In  this  small,  bare,  and  uninviting  office  Lin- 
coln passed  much  of  his  time  for  the  next  few 
years,  working  there  by  day  and  sometimes  re- 
maining for  the  night,  sleeping  on  the  crazy  old 

75 


LINCOLN  THE  LAWYER 

lounge,  covered  with  a  buffalo  robe.  Fortunately 
for  him,   there   was  no  necessity  for  such  en- 

<i^C^     A^-*^sC^c~>          <S~ — ^     yii^ZS^j    /^-e-^j       Ke_t>~^i^~r2  _ 
/£U^C  -  £*-£?.     t-^ey     ^v    rffc^.  OV*-*** '     V     {Z^-4s    <*s 

Trom  collection  of  John  W.  Thornton,  Esq. 

Letter  written  by  Lincoln  concerning  preparation  for  the  bar.  See 
also  letters  to  two  young  law  students,  Isham  Reavis  (1855)  and 
J.  M.  Brockman  (1860),  quoted  in  "  The  Career  of  a  Country  Lawyer" 
by  Charles  W.  Moores,  Esq.,  printed  by  American  Bar  Association. 

grossing  desk-work  as  is  now  required  of  am- 
bitious attorneys ;  but  there  was  more  dull,  clerical 
routine  than  falls  to  the  lot  of  the  average 
practitioner  of  to-day.     All  legal  papers  had  to 

76 


FIRST  PARTNERSHIP 

be  written  out  in  long-hand,  and  as  there  were 
no  duplicating-machines,  every  additional  copy 
meant  considerable  manual  labor,  and  most  of 
this  drudgery  fell  upon  the  junior  partner.  He 
not  only  drew  the  papers,  but  he  kept  the  books 
of  the  firm,  and  while  Stuart  was  in  Congress  he 
tried  almost  all  the  cases. 

That  he  had  virtually  no  legal  precedents  to 
guide  him  was  distinctly  an  advantage.  In  these 
days  of  encyclopedias  and  digests,  a  man  who 
enters  upon  the  study  of  law  with  a  creative  mind, 
capable  of  logical  deductions  and  close  reason- 
ing, is  apt  to  become  "case-ridden"  before  he  has 
fairly  started  on  his  practice.  Many  modern 
students  unconsciously  surrender  their  judg- 
ment to  the  guidance  of  the  court  of  last  resort. 
Their  sense  of  justice  sways  with  the  pre- 
vailing opinion ;  they  cease  to  reason,  and  merely 
parrot  the  latest  decisions. 

Lincoln  was  subjected  to  no  such  stunting 
influences.  He  reasoned  out  new  propositions 
with  an  unbiased  mind,  not  with  the  idea  of 
agreeing  or  disagreeing  with  the  previously 
expressed  conclusions  of  some  other  intellect,  but 
to  get  at  the  truth  of  the  matter;  and  it  was 
doubtless  this  training  which  enabled  him  at  a 

77 


LINCOLN  THE  LAWYER 

later  period  to  state  political  issues  with  more 
originality  and  clearness  than  any  other  speaker 
of  his  day. 

There  is  a  story  to  the  effect  that  when  he 
argued  his  first  appeal  before  the  Supreme  Court 
at  Springfield,  he  announced  that  all  the  adjudi- 
cations he  had  been  able  to  find  were  against  his 
contention,  and  he  would,  therefore,  merely  read 
the  decisions  he  had  collated  and  submit  the  mat- 
ter to  the  court.1 

If  this  story  be  true,  it  is  certainly  fortunate 
that  legal  precedents  were  rare  in  Illinois,  other- 
wise Lincoln  might  have  been  browbeaten  by 
authority,  as  are  some  of  our  case-lawyers  of 
to-day.  The  anecdote  is  not  authenticated,  how- 
ever, and  it  is  probably  apocryphal.  Even  if  the 
young  advocate  had  been  doubtful  of  his  cause, 
he  never  would  have  meekly  read  it  out  of  court 
with  adverse  decisions.  As  a  matter  of  self- 
interest,  he  would  have  made  the  best  possible 
argument ;  for  the  public  was  largely  represented 
at  all  judicial  hearings,  and  it  was  highly  im- 
portant for  a  beginner  to  make  a  good  impression 
on  the   assembled   audience.     He   was   far   too 

i  Lincoln's  first  case  in  the  Supreme  Court  was  Scammon  v. 
Cline,  reported,  in  3  Illinois,  456;  and  as  he  had  won  in  the  lower 
court,  he  had  no  reason  to  despair. 

78 


FIRST  PARTNERSHIP 

shrewd  to  have  made  an  exhibition  of  himself 
by  quoting  decisions  against  his  own  client,  and 
tamely  submitting  his  cause  to  the  court.  Such 
a  performance  would  have  ruined  a  newcomer, 
for  it  would  have  been  laughed  at  in  every 
corner  of  his  small  community  before  the  dav 
was  over.  Lincoln,  on  the  contrary,  made  a 
favorable  impression  from  the  start,  and  Spring- 
field soon  came  to  hold  his  legal  ability  in  high 
esteem. 

Although  it  was  important  for  a  young  attor- 
ney to  give  a  good  account  of  himself  in  the 
public  sessions  of  the  courts,  it  was  scarcely  less 
essential  that  he  should  make  himself  felt  in  the 
rough-and-tumble  debates  at  the  general  store  or 
other  headquarters  of  public  opinion.  The  law- 
yer who  waited  for  business  to  come  to  him  in 
those  days  would  never  have  built  up  a  clientele. 
The  village  forums  were  the  places  where  repu- 
tations were  won  or  lost,  and  the  man  who  made 
his  mark  there  was  soon  sought  as  a  legal  cham- 
pion. Lincoln  more  than  held  his  own  in  these 
semi-public  discussions  and  arguments,  and  it 
was  not  long  before  his  advent  was  hailed  with 
delight  by  the  habitues  of  Speed's  store,  the 
most  popular  arena  in  Springfield. 

79 


LINCOLN  THE  LAWYER 

But  though  his  friends  and  neighbors  recog- 
nized his  ability  and  proclaimed  it,  his  uncouth 
appearance  was  decidedly  against  him,  and  he 
not  only  failed  to  inspire  strangers  with  confi- 
dence, but  actually  invited  their  derision  and 
contempt. 

Shortly  after  he  became  associated  with 
Stuart,  the  latter  sent  him  to  try  a  case  in 
McLean  County  for  an  Englishman  named 
Baddeley,  giving  him  a  letter  of  introduction 
which  advised  the  client  that  he  could  rely 
upon  the  bearer  to  try  his  case  in  the  best  pos- 
sible manner. 

Baddeley  inspected  his  counsel's  partner  with 
amazement  and  chagrin.  The  young  man  was 
six  feet  four,  awkward,  ungainly  and  appar- 
ently shy.  He  was  dressed  in  ill-fitting  home- 
spun clothes,  the  trousers  a  little  too  short,  and 
the  coat  a  trifle  too  large.  He  had  the  appear- 
ance "of  a  rustic  on  his  first  visit  to  the  circus," 
and  as  the  client  gazed  on  him,  his  astonishment 
turned  to  indignation  and  rage.  What  did 
Stuart  mean  by  sending  a  bumpkin  of  that  sort 
to  represent  him?  It  was  preposterous,  insulting, 
and  not  to  be  endured. 

Without   attempting   to   conceal   his    disgust 

80 


FIRST  PARTNERSHIP 

Baddeley  unceremoniously  dispensed  with  Lin- 
coln's services  and  straightway  retained  James 
A.  McDougall,  later  a  United  States  senator 
from  California,  to  take  charge  of  the  case. 
History  does  not  relate  whether  the  irate  Eng- 
lishman won  or  lost  the  cause,  but  we  know  that 
he  lived  to  become  one  of  Lincoln's  most  ardent 
admirers. 

This  was  not  the  last  time  Lincoln's  personal 
appearance  was  to  prejudice  him  in  the  practice 
of  the  law.  Many  years  later,  Stanton,  then  one 
of  the  leading  lawyers  in  the  country,  was  to 
snub  "the  long-armed  creature  from  Illinois" 
who  presumed  to  assist  him  in  a  celebrated  case; 
and  he  also  lived  to  revise  his  judgment  and 
acknowledge  the  superiority  of  the  man  he 
flouted. 


81 


IX 


HIS  EARLY  CASES  AND  COMPETITORS. 

THE  record  of  Lincoln's  practice  with 
Stuart  is  very  meagre  and  unsatisfac- 
tory. The  first  case  with  which  his  name 
was  connected  as  an  attorney  was  Hawthorne 
v.  Woolridge,  one  of  three  cases  growing 
out  of  the  same  matter  which  was  being  liti- 
gated in  Stuart's  office  before  Lincoln  was 
admitted  to  the  bar,  and  of  which  he  appar- 
ently had  charge  during  his  apprenticeship.1 
The  action,  however,  never  came  to  trial,  being 
settled  out  of  court,  and  the  papers  indicate 
that  it  and  the  other  cases  with  which  it  was  con- 

i  The  action  was  begun  on  July  1,  1836,  and  was  discontinued 
on  March  17,  1837.  Every  biography  which  mentions  the  subject 
states  that  Lincoln  lost  his  first  case,  but  this  is  a  palpable  error. 
Costs  were  imposed  on  his  client  by  the  order  of  discontinuance 
in  one  of  the  three  actions,  and  against  his  opponent's  clients  in 
another,  while  in  the  third  the  costs  were  divided,— all  of  which 
was  evidently  part  of  the  compromise  by  which  the  whole  litiga- 
tion was  settled;  but  none  of  the  cases  was  ever  tried. 

82 


HIS  EARLY  CASES 

nected  made  much  ado  about  nothing,  a  not 
uncommon  feature  of  pioneer  lawsuits.  Peo- 
ple carried  their  differences  into  the  courts  far 
more  readily  in  those  days  than  they  do  now,  and 
petty  actions  for  trespass,  assault,  and  similar 
grievances  filled  the  docket.  The  conduct  of 
such  cases  did   not   require    any   very   intimate 

*  (J?        //  )  ' 


From  Major  Wm.  H.  Lambert's  collection 

"Praecipe"  (in  Lincoln's  handwriting)  in  the  case  of  Hawthorne 
v.  Woolridge,  which  was  Lincoln's  so-called  first  case 

knowledge  of  law;  and  as  the  advocates  relied 
largely  on  fervid  oratory  to  influence  the  juries, 
Lincoln  had  no  trouble  in  meeting  his  opponents 
on  even  terms.  Some  of  his  early  political 
speeches  which  have  been  preserved  demonstrate 
that  he  was  capable  of  providing  flowery  elo- 
quence when  occasion  demanded  it,  and  he  must 

83 


LINCOLN  THE  LAWYER 

have  given  the  country  jurors  just  the  sort  of 
talk  they  liked,  for  he  was  admittedly  successful 
as  a  pleader. 

Springfield  instantly  recognized  him  as  a  first- 
class  stump-speaker,  an  irresistible  mimic,  and 
an  inimitable  raconteur,  and  it  was  not  long 
before  his  humorous  stories  and  dry,  witty 
remarks  began  to  pass  from  mouth  to  mouth; 
but  he  had  been  in  practice  fully  a  year  before 
he  demonstrated  his  qualities  as  a  lawyer,  and 
then  it  was  discovered  that  this  tolerant,  good- 
natured  attorney,  though  slow  to  wrath,  was, 
when  once  aroused,  a  relentless  enemv  to  the  evil- 
doer. 

One  James  Adams,  who  called  himself  a  gen- 
eral and  posed  as  a  lawyer,  became  a  candidate 
for  the  office  of  probate  justice  in  Springfield. 
At  or  about  the  same  time  a  widow  named 
Anderson  discovered  that  some  one  had  forged 
her  husband's  name  to  a  deed  of  his  real  estate, 
and  that  the  property  to  which  she  supposed  she 
was  entitled  stood  in  the  name  of  "General" 
Adams.  At  this  stage  of  the  proceedings  she 
retained  Stuart  &  Lincoln,  and  trouble  began 
for  the  "general."  Lincoln  speedily  made  up 
his  mind  that  this  man  was  a  scoundrel,  and  he 

84 


HIS  EARLY  CASES 

not  only  brought  suit  for  the  recovery  of  the 
widow's  property,  but  camped  on  Adams's  trail, 
attacking  him  with  handbills,  newspaper  arti- 
cles, and  in  the  courts,  and  never  resting  until  he 
unearthed  a  copy  of  a  New  York  indictment 
charging  him  with  another  forgery,  and  describ- 
ing him  as  "a  person  of  evil  name  and  fame  and 
of  wicked  disposition."  This  put  the  "general" 
to  flight;  the  woman  won  her  suit  and  recovered 
the  property,  and  Lincoln's  services  as  a  lawyer 
began  to  be  in  demand. 

But  though  his  cases  were  numerous,  they 
were  not  very  lucrative.  Only  two  or  three  of 
the  fees  recorded  in  the  firm's  books  for  the  year 
1837  amount  to  $50,  and  most  of  the  entries 
show  $5  charged  as  trial  fee.  A  chancery  case 
under  date  1837-8  shows  a  debit  of  $50,  below 
which  is  written  "credit  by  coat  to  Stuart,  $15," 
making  the  net  cash  charge  $35,  which  indicates 
that  the  firm  sometimes  "took  it  out  in  trade." 

These  modest  retainers,  however,  do  not  by 
any  means  indicate  that  Stuart  &  Lincoln  were 
unsuccessful  or  even  in  a  small  way  of  business. 
The  firm  ranked  well  in  Springfield,  and  the 
capital  was  at  that  period  second  only  to  Chi- 
cago in  importance  in  the  State  of  Illinois.    The 

85 


LINCOLN  THE  LAWYER 

days  of  great  retainers  and  vast  fortunes 
accumulated  in  the  practice  of  the  law  had  not 
yet  arrived,  and  the  highest  legal  authorities  in 
the  land  did  not  command  very  princely  rev- 
enues. There  is  reason  to  believe  that  Daniel 
Webster's  income  from  the  practice  of  his  pro- 
fession did  not  average  $10,000  a  year,  and  often 
fell  far  short  of  it. 

(Sfrjfar&  ' 

From  General  Alfred  OrendorfTs  collection 

Lincoln's  jocose  caption  over  an  entry  of  Stuart  &  Lincoln's 

private  docket 

Lincoln  never  kept  any  private  account-books, 
and  the  firm  records  are  incomplete,  so  it  is 
impossible  to  tell  exactly  what  his  early  prac- 
tice was  worth  in  dollars  and  cents.  At  all 
events,  it  was  sufficient,  with  his  salary  as  State 
legislator,  to  enable  him  to  pay  his  expenses 
and  reduce  his  debts,  and  this  was  his  only  ambi- 
tion in  monetary  matters. 

86 


HIS  EARLY  CASES 

In  1839,  while  Lincoln  was  attending  the  ses- 
sions of  the  legislature,  a  company  of  players 
"on  tour"  reached  the  city,  and  their  adventures, 
as  described  by  the  late  dean  of  the  American 
stage,  then  a  little  lad  of  ten,  give  an  excellent 
picture  of  the  times. 

Springfield  being  the  capital  of  Illinois  [writes  Mr.  Jeffer- 
son in  his  Autobiography],  it  was  determined  to  devote  the 
entire  season  to  the  entertainment  of  the  members  of  the 
legislature.  Having  made  money  for  several  weeks  previous 
to  our  arrival,  the  manager  resolved  to  hire  a  lot  and  build 
a  theater.  The  building  of  a  theater  in  those  days  did  not 
require  the  amount  of  capital  that  it  does  now.  Folding  opera- 
chairs  were  unknown.  Gas  was  an  occult  mystery  not  yet 
acknowledged  as  a  fact  by  the  unscientific  world  of  the  West. 
The  new  theater  was  about  ninety  feet  deep  and  about  forty 
feet  wide.  No  attempt  was  made  at  ornamentation ;  and  as 
it  was  unpainted,  the  simple  lines  of  architecture  upon  which 
it  was  constructed  gave  it  the  appearance  of  a  large  dry-goods 
box  with  a  roof.  I  do  not  think  my  father  nor  Mr.  McKenzie 
(his  partner)  had  ever  owned  anything  with  a  roof  until  now, 
so  they  were  naturally  proud  of  their  possession. 

In  the  midst  of  our  rising  fortunes  a  heavy  blow  fell  upon 
us.  A  religious  revival  was  in  progress  at  the  time,  and  the 
fathers  of  the  church  not  only  launched  forth  against  us  in 
their  sermons,  but  by  some  political  manceuver  got  the  city 
to  pass  a  new  law  enjoining  a  heavy  license  against  our  un- 
holy" calling.  I  forget  the  amount,  but  it  was  large  enough 
to  be  prohibitory.  Here  was  a  terrible  condition  of  affairs. 
All  our  available  funds  invested,  the  legislature  in  session, 
the  town  full  of  people,  and  we,  by  a  heavy  license,  denied 
the  privilege  of  opening  the  new  theater. 

87 


LINCOLN  THE  LAWYER 

In  the  midst  of  these  troubles  a  young  lawyer1  called  upon 
the  manager.  He  had  heard  of  the  injustice  and  offered, 
if  they  would  place  the  matter  in  his  hands,  to  have  the  li- 
cense taken  off,  declaring  he  only  desired  to  see  fair  play, 
and  he  would  accept  no  fee,  whether  he  failed  or  succeeded. 
The  young  lawyer  began  his  harangue.  He  handled  the 
subject  with  tact,  skill,  and  humor,  tracing  the  history  of 
the  drama  from  the  time  when  Thespis  acted  in  a  cart  to 
the  stage  of  to-day.  He  illustrated  his  speech  with  a  num- 
ber of  anecdotes,  and  kept  the  council  in  a  roar  of  laughter; 
his  good-humor  prevailed,  and  the  exorbitant  tax  was 
taken  off. 

This  young  lawyer  [continues  Mr.  Jefferson]  was  very 
popular  in  Springfield  and  was  honored  and  beloved  by  all 
who  knew  him,  and  after  the  time  of  which  I  write  he  held 
a  rather  important  position  in  the  government  of  the 
United  States.  He  now  lies  buried  near  Springfield,  un- 
der a  monument  commemorating  his  greatness  and  his  vir- 
tues— and  his  name  was  Abraham  Lincoln. 

There  are  many  more  or  less  authentic  anec- 
dotes concerning  Lincoln's  early  practice,  but 
neither  the  character  of  the  litigation  in  which 
he  was  engaged  nor  its  remuneration  affords 
any  fair  criterion  of  his  legal  ability.  He  should 
be   judged   by   the   place   he   won   for   himself 

1  An  examination  of  the  old  records  of  Springfield  reveals  the 
fact  that  Mr.  Lincoln  was  at  or  about  this  time  a  member  of  the 
Board  of  Trustees  of  the  town  of  Springfield  and  it  is  probable 
that  he  befriended  the  players  in  that  capacity  rather  than  as  a 
lawyer.  Mr.  Isaac  N.  Phillips,  Reporter  of  Decisions  of  the  Illinois 
Supreme  Court,  first  called  the  writer's  attention  to  this  fact  which 
has  heretofore  escaped  the  attention  of  biographers. 

88 


HIS  EARLY  CASES 

among  his  contemporaries,  and  to  estimate  the 
value  of  that  judgment  it  is  necessary  to  know  his 
competitors  and  what  manner  of  men  they  were. 
The  newly  settled  States  attracted  immigra- 
tion of  a  high  order  of  intelligence,  and  Illinois 
was  particularly  fortunate  in  its  new  citizens. 

W&uu*  fc  Mis*.  M^yr^L  j 

J&L    <2^w-   erf  <!Z&  <?&<**"*• 

■^  ,^/^£^ 

From  Major  Wm.  H.  Lambert's  collection 

A  legal  document  in  Lincoln's  handwriting,  signed 
Stuart  &  Lincoln 

Young  men  came  from  the  East  and  the  South, 
Americans  of  energy,  ambition,  and  strength, 
who  rapidly  adapted  themselves  to  their  new 
surroundings  and  became  thoroughly  identified 
with    the    local    interests.       Douglas,1     Baker, 

i  In  many  of  the  legal  documents  in  which  Douglas  appears  as 
an  attorney,  his  name  is  spelled  with  a  double  "s."'  This  might 
be  imputed  to  the  error  of  copyists,  but  some  of  the  papers  ex- 
amined by  the  writer  were  in  Douglas's  own  handwriting,  and 
one  of  them  was  an  affidavit  with  the  signature  plainly  showing 
the  double  "s.  '  The  law  reports  also  spell  his  name  in  this  way. 

8  89 


LINCOLN  THE  LAWYER 

Logan,  Edwards,  McClernand,  Stuart,  Trum- 
bull, McDougall,  Browning,  Hardin,  Davis, 
Lincoln — every  one  of  them  came  of  English- 
speaking  progenitors,  and  only  one  was  foreign- 
born.  These  were  some  of  the  men  with  whom 
Lincoln  associated  almost  from  the  outset  of  his 
practice,  and  many  of  them  were  already  ad- 
mitted to  the  bar  when  he  joined  the  ranks  of 
the  profession.  That  they  were  a  remarkably 
talented  company  does  not  admit  of  doubt. 

Among  the  members  of  the  backwoods  legis- 
lature to  which  Lincoln  was  first  elected  were 
a  future  President  of  the  United  States,  a 
future  candidate  for  the  Presidency,  six  future 
United  States  senators,  eight  future  members 
of  Congress,  a  future  cabinet  secretary,  and 
no  less  than  three  future  judges  of  the  State, 
to  say  nothing  of  other  men  who  distinguished 
themselves  professionally  in  later  years.  Almost 
without  exception,  these  men  were  lawyers,,  and 
Lincoln  met  and  practised  against  them  during 

The  careers  of  Douglas  and  Lincoln  were  strangely  parallel.  Both 
men  were  born  to  poverty  and  they  were  both  self-educated. 
They  were  members  of  the  same  Illinois  legislature,  competitors 
in  the  same  profession  and  before  the  same  courts,  rivals  for  the 
hand  of  the  same  woman,  ran  against  each  other  for  the  United 
States  senatorship,  and  were  opposing  candidates  for  the 
Presidency. 

90 


The  Hon.  James  A.  McDougall        The  Hon.  Lyman  Trumbull 
The  Hon.  O.  H.  Browning  Ma j  .-Gen.  John  A.  McClernand 


HIS  EARLY  CASES 

the  three-and-twenty  years  of  his  professional 
life.  To  have  held  his  own  in  such  a  brilliant 
coterie  would  certainly  have  been  a  creditable 
achievement,  but  it  can  be  demonstrated  that  Lin- 
coln not  only  held  his  own  but,  early  in  his  career, 
became  one  of  the  leaders,  if  not  the  leader,  of  the 
Springfield  bar.  It  may  be  urged,  however,  that 
most  of  his  competitors  were  politicians,  and  not 
lawyers  of  marked  ability,  so  it  is  proper  to  exam- 
ine their  records  a  little  more  minutely. 

Stephen  T.  Logan,  who  came  originally  from 
Kentucky,  was  elected  a  judge  of  the  Circuit 
Court,  and  is  admitted  to  have  been  the  best  nisi 
priiis  (trial)  lawyer  in  the  State.  He  was 
undoubtedly  the  leader  of  the  Illinois  bar  for 
many  years. 

Edward  Dickenson  Baker,  the  Illinois  con- 
gressman, leader  of  the  California  bar,  and  the 
United  States  senator  from  Oregon,  had  a 
national  reputation  as  an  orator,  and  as  a  jury 
advocate  he  was  second  to  none  in  Illinois  as 
long  as  he  practised  in  that  State.  He  and  Lin- 
coln were  pitted  against  each  other  in  the  courts 
term  after  term. 

Stephen  Arnold  Douglas,  a  public  prosecutor 
at  twenty-two  and  a  judge  at  twenty-eight,  con- 

93 


LINCOLN  THE  LAWYER 

gressman,  United  States  senator,  and  candidate 
for  the  Presidency,  has  always  been  recognized 
as  one  of  the  ablest  men  of  his  day,  and  his  seyen 
years'  career  at  the  Illinois  bar  is  scarcely  par- 
alleled for  brilliancy  in  the  legal  annals  of  the 
United  States.  Certainly  he  and  Lincoln  were 
adversaries  often  enough  to  leave  no  doubt  as 
to  which  had  the  better  legal  mind. 

James  A.  McDougall,  who  supplanted  Lin- 
coln in  his  case  for  the  Englishman  Baddeley, 
afterward  became  attorney-general  for  the 
State  of  Illinois  and  United  States  senator  from 
California,  and,  despite  his  eccentricities,  was 
unquestionably  a  lawyer  of  ability. 

Lyman  Trumbull,  United  States  senator 
from  Illinois,  was  distinguished  at  the  bar  long 
before  he  won  political  honors,  and  every  writer 
with  knowledge  of  those  times  includes  him 
among  the  eminent  practitioners,  of  his  day; 
while  David  Davis,  judge  of  the  Eighth  Illinois 
Circuit,  United  States  senator,  and  associate 
justice  of  the  Supreme  Court  of  the  United 
States  at  Washington,  was,  of  course,  a  jurist 
of  national  repute. 

Leaving  the  question  of  his  relative  standing 
in  the  profession  at  large  for  further  considera- 

94 


HIS  EARLY  CASES 

tion,  it  is  confidently  submitted  that  Lincoln 
won  a  notable  standing  at  the  local  bar,  almost 
at  the  outset  of  his  career,  among  contempor- 
aries who  were  not  only  capable  lawyers,  but 
men  of  exceptional  force  and  character.  Indeed, 
it  is  exceedingly  doubtful  if  the  bar  of  any  other 
state  in  the  Union  equaled  that  of  the  frontier 
state  of  Illinois  in  professional  ability  when  Lin- 
coln won  his  spurs. 


95 


LINCOLN  THE  MANAGING  CLERK 

WHEN  Lincoln  was  postmaster  of  New 
Salem  he  used  to  tuck  the  letters  inside 
his  hat  and  deliver  them  whenever  he  happened 
to  meet  the  persons  to  whom  they  were  addressed. 
As  this  is  a  fair  example  of  his  business  system, 
it  may  readily  be  imagined  that  the  office  of 
Stuart  &  Lincoln  was  not  a  model  establish- 
ment, where  there  was  a  place  for  everything 
and  everything  in  its  place.  And  it  was  not. 
Indeed,  as  a  managing  clerk  the  junior  partner 
would  have  been  a  hopeless  failure,  and  as  an 
attorney,  in  the  technical  sense  of  the  term,  he 
would  never  have  distinguished  himself.  He  dis- 
liked everything  connected  with  the  drudgery 
of  legal  routine,  hated  drawing  the  declarations 
and  pleas,  despised  the  artificialities  and  refine- 
ments which  were  even  then  beginning  to  creep 

96 


THE  MANAGING  CLERK 

into  the  pleadings,  and  disregarded  forms  when- 
ever it  was  possible  to  do  so. 

There  was  nothing  mechanical,  precise,  or 
methodical  about  the  man,  and  in  all  those  house- 
wifely virtues  which  characterize  the  careful, 
orderly,  exact  solicitor  he  was  utterly  deficient. 
He  never  knew  where  his  papers  were,  and 
apparently  the  only  attempt  he  ever  made  to  bet- 
ter the  disorder  was  to  write  on  one  of  the  bun- 
dles of  papers  which  littered  his  desk,  "When 
you  can't  find  It  anywhere  else,  look  in  this."1 
But  that  was  long  after  the  firm  of  Stuart  & 
Lincoln  had  dissolved,  and  even  then  we  find 
him  explaining  to  a  correspondent  that  he  had 
placed  his  letter  inside  an  old  hat  and  had  thus 
neglected  answering  it,  which  shows  he  had  not 
wholly  outgrown  the  habit  of  his  post-office  days. 
Indeed,  his  hat  continued  to  be  his  favorite 
receptacle  for  papers  as  long  as  he  lived,  and  he 
never  acquired  any  sense  of  order.2 

Fortunately  for  his  peace  of  mind,  Stuart  had 

1  This  memorandum  is  in  existence  to-day.  It  is  owned  by  a 
Philadelphia  law  firm. 

2  Even  on  his  journey  to  Washington  he  actually  mislaid  his 
inaugural  address,  and  for  a  time  it  was  feared  that  the  contents 
of  that  jealously  guarded  document  would  become  public  prop- 
erty before  Buchanan's  term  expired;  but  finally  it  was  located, 
and  no  premature  announcement  of  his  policy  was  made. 

97 


LINCOLN  THE  LAWYER 

no  more  system  in  business  affairs  than  his  asso- 
ciate, and  the  result  of  their  lax  methods  was,  of 
course,  confusion  worse  confounded.  Again 
and  again  we  find  Lincoln  reporting  to  his  part- 
ner in  Washington  that  clients  had  called  for 
deeds  which  could  not  be  found,  and  that  papers 
were  wanted  which  had  disappeared,  and  there 
is  no  proof  that  the  Major  was  ever  able  to  help 
in  the  search.  In  fact,  neither  man  took  even 
ordinary  business  precautions,  and  if  either  of 
them  kept  copies  of  letters,  no  evidence  of 
that  fact  has  yet  been  discovered.  Certainly 
Lincoln's  private  correspondence  was  conducted 
in  the  loosest  possible  fashion.  He  would  write 
on  whatever  happened  to  be  handy,  and  his 
notes  for  law  work  or  speeches  were  scribbled  on 
the  backs  of  envelopes,  edges  of  newspapers,  or 
other  available  material.  Most  of  these  memo- 
randa found  their  way  sooner  or  later  into  his 
capacious  "stovepipe,"  and  when  any  particular 
item  was  needed,  the  search  which  followed  sug- 
gested the  conjurer's  hat  trick. 

Lincoln  was  too  philosophic  to  be  bored  or 
irritated  by  the  details  or  minutiae  of  the  profes- 
sion.    He  simply  ignored   them.      The    argus- 

98 


THE  MANAGING  CLERK 

eyed  attorney,  who  sees  that  every  "t"  is  crossed 
and  that  every  "i"  is  dotted,  doubtless  fulfils 
a  useful  function  in  the  practice  of  the  law,  but 
Lincoln  was  not  a  lawyer  of  this  quality.  Indeed, 
it  must  be  conceded  that  in  all  such  matters 
another  distinguished  President  of  legal  antece- 
dents decisively  outranks  him.  Thomas  Jeffer- 
son was  a  master  of  accounts  and  bookkeeping. 
He  was  the  champion  diarist  of  the  world,  the 
most  methodical  of  statisticians,  and  the  neatest, 
most  precise  "man  of  business"  who  ever  tied 
papers  with  red  tape  and  sealed  them  with  green 
seals ;  and  yet  he  will  never  be  classed  among  the 
great  lawyers  of  the  nation.  Fancy  Jefferson 
or  any  other  capable  manager  writing  a  client  in 
this  fashion  and  turning  good  business  from  the 
door : 

As  to  the  real  estate,  we  cannot  attend  to  it.  We  are  not 
real  estate  agents.  We  are  lawyers.  We  recommend  you 
to  give  the  charge  of  it  to  Mr.  Isaac  S.  Britton,  a  trustworthy 
man  and  one  whom  the  Lord  made  on  purpose  for  such 
business."  1 

Perhaps  this  letter  displays  poor  commercial 
judgment,  and  doubtless  it  shocked  and  grieved 
the  thrifty  man  with  whom   Lincoln   was   asso- 

1  See  article  by  Jesse  W.  Weik,  in  The  Century  for  June,  1901. 

99 


LINCOLN  THE  LAWYER 

ciated  when  he  wrote  it,  but  it  shows  that  he  had 
his  own  ideas  of  the  dignity  of  the  profession 
and  did  not  purpose  to  barter  it. 

Lincoln's  mind  was  orderly,  though  his 
methods  were  not.  He  neglected  details  because 
his  thought,  which  was  "as  direct  as  light," 
passed  instantly  to  the  vital  spot,  and  all  else 
seemed  unimportant.  "If  I  can  free  this  case 
from  technicalities  and  get  it  properly  swung  to 
the  jury,  I'll  win  it,"  he  used  to  say;  and  this  was 
his  mental  attitude  toward  all  legal  questions. 
He  had  no  training  in  technicalities  as  long  as 
the  firm  of  Stuart  &  Lincoln  lasted,  and  it  is 
doubtful  if  any  teaching  would  have  qualified 
him  for  attorney  work  or  made  him  a  master  of 
detail.  Yet  as  an  office  lawyer — such  as  rules 
the  destinies  of  our  modern  corporate  interests — 
he  probably  would  have  been  invaluable.  His 
mind  comprehended  large  subjects  without  the 
slightest  effort.  Once  concentrated  on  an  issue, 
he  passed  directly  to  the  point,  disregarded  the 
thousand  and  one  contingencies,  all  the  academic 
pros  and  cons,  and  reduced  the  problem  to  its 
simplest  possible  form.  The  man  who  is  con- 
stantly mindful  of  details  is  apt  to  attach  too 
much  importance  to  small  things,  and  with  such 

100 


THE  MANAGING  CLERK 

a  man  compromises  are  difficult,  if  not  impos- 
sible. Lincoln  had  no  training  of  this  sort  to  over- 
come, and  the  result  is  constantly  apparent  in 
all  his  important  actions  of  later  years. 

It  is  not,  of  course,  contended  that  his  unmeth- 
odical habits  and  loose  business  training  prove 
his  legal  aptitude,  but  it  is  submitted  that  they 
do  not  define  his  limitations  as  a  lawyer.  His 
natural  perceptions  were  too  keen,  his  mind  too 
generously  catholic,  to  admit  of  the  discipline 
enforced  by  the  usual  legal  training.  Education 
of  that  sort  would  probably  have  warped  his  nat- 
ural talents,  and  the  result  might  have  been  a 
conscientious  family  solicitor  instead  of  the  great 
adviser  of  a  nation.  He  needed  the  freedom  of 
an  office  innocent  of  patent  letter-files  and  card- 
catalogue  indices  to  develop  his  individuality; 
he  demanded  the  growing  room  of  a  new  coun- 
try where  the  practice  of  the  law  was  not  con- 
ventionalized out  of  all  meaning  and  forms  did 
not  restrict;  he  required  the  self -discipline 
which  comes  of  personal,  unguided  effort  and 
unhandicapped  competition;  and  he  found  the 
requisite  conditions  in  his  free-and-easy  associa- 
tion with  Major  Stuart. 

The  independence  and  responsibility  which  he 

101 


LINCOLN  THE  LAWYER 

experienced  in  this  partnership  allowed  him  to 
exercise  and  express  his  individuality  at  a  time 
when  stricter  discipline  and  more  technical  teach- 
ing would  have  fretted  him  or  molded  his  matur- 
ing mind  in  a  different  fashion.  As  it  was,  hd 
developed  naturally  into  a  broad-minded  coun- 
selor who  reverenced  the  law  without  worshiping 
it,  and  whose  sense  of  justice  was  not  dulled 
by  contact  with  unyielding  precedents. 

If  Stuart  had  been  ambitious  to  accumulate 
a  fortune,  he  would  have  been  disappointed  with 
his  partner;  for,  with  a  people  as  litigious  as  the 
early  Illinois  settlers,  it  was  a  simple  matter  to 
stir  up  strife  and  make  work  for  the  lawyer,  and 
Lincoln,  instead  of  egging  clients  into  the  courts, 
set  his  face  against  such  practice. 

"Discourage  litigation"  was  his  advice  to  law- 
yers. "Persuade  your  neighbors  to  compromise 
whenever  you  can.  Point  out  to  them  how  the 
nominal  winner  is  often  the  real  loser— in  fees, 
expenses,  and  waste  of  time.  As  a  peacemaker 
the  lawyer  has  a  superior  opportunity  of  becom- 
ing a  good  man.  There  will  always  be  enough 
business.  Never  stir  up  litigation.  A  worse  man 
can  scarcely  be  found  than  one  who  does  this. 
Who  can  be  more  nearly  a  fiend  than  he  who 

102 


THE  MANAGING  CLERK 

habitually  overhauls  the  register  of  deeds  in 
search  of  defects  in  titles,  whereon  to  stir  up 
strife  and  put  money  in  his  pocket?  A  moral 
tone  ought  to  be  infused  into  the  profession 
which  should  drive  such  men  out  of  it" 

It  has  been  truly  said  that  those  words  should 
be  posted  in  every  law  office  in  the  land,  and  it 
will  be  seen,  when  Lincoln's  record  is  fully 
examined,  that  it  was  not  a  mere  theorist  who 
wrote  them,  but  an  active  practitioner  of  wide 
experience  who  lived  up  to  his  own  teaching. 


103 


XI 

EAELY  SUCCESS  IN  THE  COURTS 

"  INCOLN  had  served  four  terms  in  the 
-*■— *  State  legislature,  and  had  once  been 
a  formidable  candidate  for  speaker  of 
that  body,  before  his  partnership  with 
Stuart  terminated.  Doubtless  he  could  have 
held  the  office  indefinitely  had  he  chosen 
to  do  so,  but  there  was  neither  glory  nor 
profit  in  the  work  at  that  particular  period  of 
Illinois  history,  and  for  the  time  being  he  had 
obtained  all  the  legislative  experience  he  required. 
Moreover,  his  ambition  was  beginning  to  take  a 
wider  range,  and  his  name  had  been  seriously 
mentioned  for  the  governorship  on  more  than 
one  occasion.  This  and  the  fact  of  his  contem- 
plated marriage  decided  him  to  retire  from  poli- 
tics and  devote  himself  exclusively  to  the  prac- 
tice of  his  profession. 

His  four  years'  association  with  Stuart  had 

104 


EARLY  SUCCESS  IN  THE  COURTS 

given  him  a  fair  start  in  the  law,  and  he  had 
enlarged  his  acquaintance  and  experience  by 
traveling  the  circuit  on  every  possible  occasion. 
In  those  days  lawyers  in  active  practice  spent  a 
great  part  of  their  time  following  the  local 
judges,  on  horseback  or  afoot,  from  one  town  to 
another,  journeying  in  small  parties,  and  stop- 
ping at  the  same  taverns,  like  a  company  of 
players  on  the  road.  Some  of  the  leaders,  like 
Judge  Logan,  had  cases  to  try  in  the  various  vil- 
lages and  towns  on  the  route,  but  others  picked 
up  business  on  the  way,  and,  from  all  accounts, 
the  pickings  must  sometimes  have  been  pain- 
fully lean,  for  Douglas's  fees  on  one  trip 
amounted  only  to  five  dollars,  and  his  was  an 
unusually  magnetic  personality.  There  was 
hardship  and  discomfort  in  this  work,  but  even 
in  those  very  early  days,  when  the  roads  were 
almost  impassable  and  the  hotel  accommodations 
belied  the  name,  the  life  had  its  peculiar  charms, 
for  the  members  of  the  bar  were  persons  of  no 
little  distinction  in  the  eyes  of  the  country  vil- 
lagers, and  the  advent  of  the  nomadic  court  was 
the  red-letter  day  of  the  country  calendars. 

Riding  and  tramping  the  circuit  month  after 
month  brought  Lincoln  into  close  touch  with 

105 


LINCOLN  THE  LAWYER 

almost  all  the  local  members  of  his  profession, 
and  he  took  high  rank  among  them  almost  from 
the  start.  The  nature  of  his  success  at  this  early 
period  is,  however,  a  subject  of  much  misappre- 
hension. Most  of  the  biographies  give  the 
impression  that  his  associates  appreciated  him  as 
an  entertaining,  unselfish  companion,  but  did 
not  consider  him  very  seriously  as  a  lawyer. 
But  good  nature,  generosity,  and  unselfishness 
do  not  necessarily  insure  respect  unless  a  man 
has  the  power  to  command  it,  and  that  power 
Lincoln  most  certainly  possessed.  There  is  a 
story  that  he  used  to  be  sent  ahead  as  a  scout 
when  the  rivers  were  swollen,  to  test  the  fords 
with  his  long  legs,  and  doubtless  it  is  true;  but 
there  is  another  stoiy  that  he  once  interrupted  a 
too  personal  debate  as  to  the  proper  length  for 
a  man's  legs  by  remarking,  "I  should  think  they 
ought  to  be  long  enough  to  reach  from  your 
body  to  the  ground,"  a  quiet  retort  which  is  said 
to  have  put  some  of  the  debaters  in  the  air. 

It  was  in  the  courts,  however,  that  Lincoln's 
nature  and  disposition  showed  to  best  advantage, 
and  it  was  there  that  he  won  his  most  enduring 
popularity  and  his  first  real  recognition.  Law- 
yers frequently  refer  to  each  other  as  brothers, 

106 


EARLY  SUCCESS  IN  THE  COURTS 

but  there  is  very  little  real  fraternity  in  the  pro- 
fession. The  sharp,  personal  collisions  inevitable 
in  litigation  bruise  and  jar  the  contestants,  no 
matter  how  hardened  they  may  be,  and  the  man 
who  emerges  from  the  fray  with  no  prejudice 
against  his  opponent  and  without  having  given 
the  least  offense  possesses  a  remarkable  tempera- 
ment— and  such  a  man  was  Abraham  Lincoln. 
He  knew  how  to  try  a  case  without  making  it  a 
personal  issue  between  counsel.  He  could  utter 
effective  replies  without  insulting  his  opponent, 
and  during  all  his  practice  he  never  made  an 
enemy  in  the  ranks  of  the  profession.  No  one 
but  a  lawyer  can  appreciate  what  this  means; 
but  it  requires  generosity,  patience,  tact,  cour- 
tesy, firmness,  courage,  self-control,  and  a  big- 
mindedness  which  few  men  possess.  Yet,  day 
after  day  and  year  after  year,  Lincoln  met  all 
sorts  and  conditions  of  lawyers  at  a  time  when 
they  were  all  young,  ambitious,  and  keen  to  suc- 
ceed, without  embittering  any  one  or  forfeiting 
his  self-respect.  Not  many  members  of  the  pro- 
fession can  show  an  equal  record;  certainly  none 
of  the  Springfield  bar  has  left  a  similar  reputa- 
tion. 

That    Lincoln's     experience    in    the    courts 
7  109 


LINCOLN  THE  LAWYER 

guided  his  conduct  in  the  political  arena  and  in 
the  hard-fought  field  of  statesmanship  cannot 
reasonably  be  questioned.  No  public  man  in  this 
country  ever  engaged  in  more  heated  contro- 
versies than  he,  none  was  ever  subjected  to  such 
bitter  taunts  or  suffered  such  provocation;  yet 
after  years  of  the  fiercest  political  warfare  and  a 
duel  of  debate  unsurpassed  in  the  history  of  the 
world,  his  most  zealous  opponent  was  able  to  side 
with  him  in  the  hour  of  national  peril,  and  when 
he  took  the  oath  of  office  as  President  of  the 
United  States,  that  same  bitter  rival,  and  unsuc- 
cessful candidate  for  the  mighty  office,  stood  by 
him  and  held  his  capacious  hat.  Nor  was  Doug- 
las the  only  one  of  his  competitors  who  harbored 
no  resentment  in  the  hour  of  defeat.  Seward, 
the  ambition  of  whose  life  was  crushed  when 
Lincoln  was  nominated,  and  who  accepted  office 
under  the  rail-splitter  only  "to  save  the  country," 
had  no  cheap  retorts  to  forget  when  he  came  to 
acknowledge  his  adversary  as  "the  best  man  of 
us  all";  and  to-day  the  South  can  find  no  word 
of  offense  in  all  the  utterances  of  the  most  tire- 
less advocate  of  emancipation  and  the  Union. 

It  may  be  claimed,  however,  that  Lincoln's 
early  reputation  as  a  fair,  clean  practitioner  does 

110 


EARLY  SUCCESS  IN  THE  COURTS 

not  prove  that  he  was  regarded  seriously  as  a 
lawyer  when  he  first  practised  on  the  circuit,  and 
of  course  it  does  not.  But  there  is  very  positive 
proof  of  his  professional  recognition  in  the  fact 
that  when  his  association  with  Stuart  ended, 
Stephen  Logan,  the  leading  lawyer  of  the  cir- 
cuit, if  not  of  the  State,  a  former  judge,  and 
one  of  the  canniest  business  men  at  the  bar, 
singled  him  out  from  all  his  contemporaries  and 
offered  him  a  partnership. 


Ill 


XII 

A   NOTABLE    PARTNERSHIP 

THE  story  of  Lincoln's  professional  life 
might  fairly  be  said  to  date  from  his  asso- 
ciation with  Judge  Logan;  for  although  he  had 
already  seen  four  years  of  practice,  his  ex- 
perience had  been  mainly  preparatory,  and  what- 
ever law  he  knew  he  had  taught  himself  without 
competent  guidance  or  control.  His  new  part- 
ner, however,  possessed  not  only  a  strong  indi- 
viduality, but  also  a  positive  genius  for  develop- 
ing legal  talents,  and  his  example  and  instruc- 
tion undoubtedly  had  an  immediate  and  lasting 
influence  upon  Lincoln's  subsequent  career. 

Stephen  Trigg  Logan  was,  like  his  partner, 
a  native  of  Kentucky,  but  when  he  moved  to  Illi- 
nois he  was  thirty-two  years  of  age  and  he  had 
been  Commonwealth  Attorney  in  his  own  State 
for  ten  years  before  he  opened  an  office  in 
Springfield.  Not  only  was  he  better  equipped 
by  education  and  training  than  most  of  the  Illi- 

112 


A  NOTABLE  PARTNERSHIP 

nois  practitioners,  but  he  was  unusualjy  well 
endowed  by  nature  for  the  practice  of  his  pro- 
fession, and  he  speedily  took  high  rank  at  the 
bar  of  Illinois.  Indeed,  such  was  his  reputation 
for  ability  and  learning  that  he  was  appointed 
judge  of  the  Fifth  Circuit  less  than  three  years 
after  his  arrival  at  Springfield;  but  the  judicial 
salary— seven  hundred  and  fifty  dollars  a  year1 
— was  wholly  inadequate  for  a  man  of  his  cali- 
ber, and  becoming  restless  under  this  pecuniary 
sacrifice,  he  resigned  in  1837,  after  two  years' 
service  on  the  bench.  His  unquestioned  leader- 
ship of  the  bar  dates  from  this  return  to  prac- 
tice, and  for  many  years  afterward  his  sway  was 
almost  absolute.  In  the  third  volume  of  the  Illi- 
nois Supreme  Court  Reports  his  name  appears 
in  connection  with  no  less  than  twenty-six  appeals 
— an  unprecedented  record  for  those  times, 
showing  that  he  was  retained  on  one  side  or  the 
other  of  almost  every  important  matter  in  the 
courts.2 

These  facts  demonstrate  the  extent  and  value 

i  Laws  of  1834-5,  p.  167.  Afterward  the  salary  was  raised 
to   a   thousand    dollars. 

2  A  very  complete  biographical  sketch  of  Judge  Logan  is  con- 
tained in  a  volume,  now  out  of  print,  entitled,  "The  Life  and 
Character  of  Stephen  T.  Logan,"  published  in  Springfield,  Illinois, 
in  1882. 

113 


LINCOLN  THE  LAWYER 

of  his  practice,  and  there  is  every  reason  to 
believe  he  had  the  whole  bar  to  choose  from  when 
he  suggested  a  partnership  to  Lincoln  in  the 
spring  of  1841.  It  could  not  have  been  for  his 
social  qualities  that  Logan  chose  his  man,  and  he 
certainly  could  not  have  coveted  the  small  per- 
sonal clientage  which  Lincoln  had  secured  dur- 
ing his  apprentice  years.  Neither  is  it  at  all 
probable  that  he  allowed  any  question  of  friend- 
ship to  enter  into  his  business  calculations. 
Doubtless  he  liked  the  young  man  and  found 
his  company  agreeable,  but  there  was  a  strong 
mixture  of  Scotch  blood  in  the  judge's  veins, 
and  his  eyes  very  rarely  wandered  from  the  main 
chance.  He  wanted  an  assistant  capable  of  help- 
ing him  with  his  steadily  increasing  legal  work, 
and  the  explanation  of  his  choice  was  obvious. 
He  believed  that  Lincoln  had  in  him  the  makings 
of  an  able  lawyer,  and  he  instinctively  recog- 
nized promising  legal  material  in  the  rough.  No 
less  than  seven  distinguished  members  of  the  bar 
and  statesmen  of  repute — four  United  States 
senators  and  three  governors  of  States — were 
developed  in  the  same  office  in  later  years,  and 
their  careers  testify  to  the  powerful  influence  of 

114 


(vupj^/Ccckj  (T  ocicyo* 


A  NOTABLE  PARTNERSHIP 

their  preceptor  and  his  faculty  for  discovering 
latent  talent. 

Logan's  recognition  of  Lincoln's  qualifica- 
tions was  not,  however,  wholly  divination.  His 
attention  had  been  first  attracted  to  the  young 
man  by  a  "very  sensible  speech"  which  he  had 
delivered  during  his  earliest  political  canvass, 
and  when  he  was  admitted  to  practice  the  judge 
was  on  the  bench  and  doubtless  heard  his  maiden 
efforts  at  the  bar.1  Later  he  frequently  met 
him  in  practice  on  the  circuit,  and  received 
the  best  possible  proof  of  his  legal  aptitudes; 
for  in  the  fourth  volume  of  Illinois  Reports  we 
find  him  opposed  to  his  future  partner  in  at  least 
three  appeals  from  cases  tried  as  early  as  1839, 
and  in  all  of  them  Lincoln  was  the  victor.  More- 
over, one  of  these  cases  (Bailey  v.  Cromwell,  4 
Ills.,  71)  involved  an  important  principle,  and 
was  otherwise  calculated  to  inspire  each  man 
to  his  very  best  effort,  although  neither  could 
possibly  have  dreamed  that  it  was  to  have  a  place 
in  history  as  the  first  contest  touching  slavery  in 
which  the  great  Emancipator  was  engaged. 

1  Judge  Logan  made  the  order  admitting  Lincoln  to  the  bar 
(Record  of  the  Circuit  Court,  Sangamon  County,  p.  173),  and 
he  also  signed  the  order  discontinuing  what  is  known  as  his  first 
case. 

117 


LINCOLN  THE  LAWYER 

This  case  grew  out  of  a  promisory  note  made 
by  one  Bailey  to  one  Cromwell  in  payment  of  the 
purchase  price  of  a  negro  girl  named  Nance. 
When  the  note  matured  the  maker  declined  to 
pay  it  on  the  ground  that  Nance  was  not  a  slave, 
and  the  trial  turned  entirely  upon  this  point. 
Lincoln  was  retained  b}^  Bailey,  and  a  hot  fight 
followed  in  which  Lincoln  was  beaten;  but  he 
immediately  appealed  to  the  Supreme  Court, 
which  sustained  his  contention  and,  reversing  the 
lower  court,  declared  the  girl  free.1 

Except  in  the  matter  of  their  legal  qualities, 
however,  the  new  associates  were  a  strangely 
assorted  pair.  There  was  only  nine  years'  differ- 
ence in  their  ages,  but  Logan  had  been  in  prac- 
tice for  at  least  fifteen  years  when  Lincoln  was 
admitted  to  the  bar;  and,  as  all  his  powers  were 
matured  before  Lincoln's  began  to  develop,  he 
appeared  much  older,  and  in  temperament  the 
two  men  were  hopelessly  apart.     Logan  was  a 

1On  his  brief  in  this  case  Lincoln  cited  10  Johns.,  198;  10  Wend., 
384;  3  Caines,  325;  Ordinance  of  Congress,  Art.  vi;  R.  L.  57;  Gale's 
Stat.,  44;  Constitution  of  Ills.,  Art.  vi;  14  Johns.,  188;  2  Bibb.,  238; 
2  Salkeld,  666;  which  illustrates  the  extent  of  his  available  legal  ma- 
terial at  that  period. 

The  writer  finds  that  Bailey  v.  Cromwell  has  been  cited  by  other 
judges  in  later  cases,  at  least  eighteen  times. 

118 


A  NOTABLE  PARTNERSHIP 

formal,  precise,  technical  attorney,  who  read 
Blackstone's  Commentaries  from  beginning  to 
end  at  least  once  every  year  until  he  was  sixty, 
and  whose  shrewd,  hard  face  and  keen  eyes 
bespoke  the  man  of  business.  He  was  orderly 
and  methodical  in  his  habits,  careful  and  pains- 
taking in  all  matters  of  detail,  highly  moral 
"with  an  old-fashioned  lawyer's  sense  of  moral- 
ity," industrious  to  a  fault,  ambitious  to  make 
money,  and  wholly  absorbed  in  the  practice  of 
his  profession.  With  such  a  man  Abraham  Lin- 
coln, of  course,  had  little  in  common ;  for  he  him- 
self was  easy-going,  unsystematic,  and  without 
the  slightest  inclination  for  wealth.  "Wealth," 
he  observed,  "is  simply  a  superfluity  of  things 
we  don't  need,"  and  his  indifference  to  the  com- 
mercial advantages  of  the  legal  profession  must 
have  amazed  his  associate,  who  never  lost  sight 
of  them,  and  died  a  rich  man.  But  though  he 
did  not  care  to  make  money,  Lincoln  was  exceed- 
ingly  ambitious  to  make  a  name  for  himself ;  and 
realizing  his  own  shortcomings  as  a  lawyer,  he 
studied  the  methods  of  his  experienced  partner 
with  the  closest  attention.  Until  he  came  under 
Logan's  influence  he  had  practised  in  the  laziest 

119 


LINCOLN  THE  LAWYER 

possible  fashion,  making  virtually  no  prepara- 
tion for  his  cases,  and  relying  on  his  wits  and  the 
inspiration  of  the  moment  to  carry  the  jury  with 
him.  It  would  have  been  impossible  for  any  man 
to  accomplish  much  by  such  methods,  and  Lin- 
coln's mental  process  was  particularly  ill  adapted 
for  haphazard  work.  His  mind  acted  slowly, 
and  although  he  could  make  a  quick  reply  upon 
occasion,  he  required  time  to  do  himself  full  jus- 
tice either  in  the  courts  or  on  the  platform. 
Whether  Logan  told  him  this  in  so  many  words, 
or  whether  he  discovered  it  for  himself,  is  of 
little  moment,  but  it  is  certain  that  he  soon  began 
to  adopt  his  partner's  methods,  studying  his 
cases  with  the  utmost  care  and  diligently  exam- 
ining the  law.  This  training  immediately 
showed  itself  in  his  work. 

Instead  of  being  occasionally  dangerous,  he 
soon  became  a  formidable  opponent  whenever  he 
believed  in  a  cause.  He  was  too  broad-minded  for 
the  blind  partizanship  of  the  average  small  attor- 
ney, and  instinctively  looked  on  both  sides  of 
each  question;  but  it  was  doubtless  Logan  who 
showed  him  the  tactical  advantage  of  knowing 
his  adversary's  case  as  thoroughly  as  he  knew  his 
own,  and,  as  a  result,  we  have  his  own  testimony 

120 


A  NOTABLE  PARTNERSHIP 

that  in  all  his  practice  at  the  bar  he  was  never 
once  surprised  by  the  strength  of  his  opponent's 
cause,  and  often  found  it  much  weaker  than  he 
had  hoped. 

It  is  only  necessary  to  recall  a  few  episodes 
in  Lincoln's  public  career  to  realize  how  this 
training  served  him  in  time  of  need.  When 
Captain  Wilkes  stopped  the  Trent  on  the  high 
seas  and  removed  the  Confederate  envoys 
Mason  and  Slidell  from  the  protection  of  the 
English  flag,  Lincoln  was  at  first  inclined  to  take 
the  popular  view  of  the  matter;  but  he  calmly 
weighed  the  angry  protest  of  the  mother-coun- 
try, argued  her  case  in  his  own  mind,  and  not 
only  saw  that  she  was  right,  but  also  shrewdly 
noted  the  tactical  advantage  of  submission, 
which  he  quietly  pointed  out  in  the  most  signifi- 
cant words. 

"We  must  stick  to  American  principles  con- 
cerning the  rights  of  neutrals,"  he  remarked. 
"We  fought  Great  Britain  for  insisting  by 
theory  and  practice  on  the  right  to  do  precisely 
what  Captain  Wilkes  has  done.  If  Great  Brit- 
ain shall  now  protest  against  the  act  and  demand 
Slidell  and  Mason,  we  must  give  them  up  and 
apologize  for  the  act  as  a  violation  of  our  own 

121 


LINCOLN  THE  LAWYER 

doctrines,  and  thus  forever  bind  her  over  to  keep 
the  peace  in  relation  to  neutrals  and  so  acknowl- 
edge that  she  has  been  wrong  for  sixty  years." 

Again,  it  was  his  knowledge  of  his  opponent's 
armor  which  made  him  the  most  dangerous 
debater  of  the  slavery  issue.  Abolitionists  ranted 
and  rashly  accused  the  Southerners  of  high  crimes 
and  misdemeanors  of  which  they  were  wholly 
innocent.  Lincoln  learned  the  pro-slavery  argu- 
ments, stated  them  fairly,  analyzed  them  piti- 
lessly, turned  them  against  their  sponsors,  and 
convicted  them  out  of  their  own  mouths.  It  was 
this  great  legal  trait,  acquired  and  cultivated  in 
Logan's  office,  that  Douglas  had  in  mind  when 
he  exclaimed  that  "Lincoln  had  given  him  more 
trouble  than  all  the  Abolitionists  put  together." 

Logan  did  not  succeed  in  teaching  his  young 
partner  to  be  a  technical  lawyer,  but  he  did 
undoubtedly  show  him  the  tactical  value  of  pro- 
cedure, and  it  will  be  seen  in  another  chapter  that 
he  occasionally  availed  himself  of  this  knowl- 
edge, although  he  never  practised  by  rule  of 
thumb.  In  the  matter  of  strategy  he  needed  no 
instruction,  and  his  knowledge  of  human  nature 
was  vastly  superior  to  Logan's.  Moreover,  the 
judge's  sense  of  humor  was  somewhat  deficient, 

122 


A  NOTABLE  PARTNERSHIP 

and  Lincoln  once  took  an  amusing  advantage  of 
this  when  he  was  practising  against  him  before  a 
jury  on  the  circuit.  Logan  was  dignity  itself  on 
such  occasions;  but,  orderly  as  he  was  in  most 
matters,  he  seldom  wore  a  necktie  and  was  other- 
wise careless  about  his  dress,  and  Lincoln,  know- 
ing his  man,  proceeded  to  unhorse  him  as  soon 
as  he  addressed  the  jury. 

"Gentlemen,"  he  began,  "you  must  be  careful 
and  not  permit  yourselves  to  be  overborne  by  the 
eloquence  of  the  counsel  for  the  defense.  Judge 
Logan,  I  know,  is  an  effective  lawyer.  I  have 
met  him  too  often  to  doubt  that;  but  shrewd  and 
careful  though  he  be,  still,  he  is  sometimes 
wrong.  Since  this  trial  began  I  have  discovered 
that,  with  all  his  caution  and  fastidiousness,  he 
has  n't  knowledge  enough  to  put  his  shirt  on 
right." 

Logan  turned  crimson  with  embarrassment, 
and  the  jurors  burst  into  a  roar  of  laughter  as 
they  discovered  that  the  discomfited  advocate 
was  wearing  the  garment  in  question  with  the 
plaited  bosom  behind,  and  for  the  rest  of  that 
trial  Logan  was  not  effective  against  his  former 
partner. 


123 


XIII 

JUDGE    LOGAN    AND    LINCOLN 

THE  terms  of  Lincoln's  partnership  with 
Judge  Logan  are  not  known,  hut  it  may 
reasonably  be  inferred  that  the  junior  member  of 
the  firm  received  only  a  small  percentage  of  the 
fees,  for  the  business  was  almost  entirely  Logan's, 
and  he  was  not  by  nature  over-generous.  Indeed, 
he  had  quarreled  with  his  former  partner,  the  bril- 
liant orator  Edward  Dickenson  Baker,  on  mone- 
tary matters;  and  it  is  probable  that  there  were 
few  members  of  the  bar  who  would  have  been 
as  tractable  as  Lincoln  on  the  question  of  com- 
pensation. Certainly  his  style  of  living  at  that 
period  indicated  a  very  slender  revenue,  consid- 
ering the  standing  of  the  firm;  for  even  after  his 
marriage  with  Miss  Marv  Todd,  in  November, 
1842,  he  and  his  wife  were  not  able  to  keep  house, 
but  lived  at  the  Globe  Tavern,  where  their  room 

124 


JUDGE  LOGAN  AND  LINCOLN 

and  board  cost  only  four  dollars  a  week ;  and  still 
later  in  the  partnership  he  wrote  that  he  could 
not  accept  an  invitation  to  visit  Kentucky 
"because  he  was  so  poor  and  made  so  little  head- 
way that  he  dropped  back  in  a  month  of  idleness 
as  much  as  he  gained  in  a  year's  sowing." 

During  all  this  time,  however,  the  practice  of 
the  firm  was  steadily  increasing  and  Logan  was 
becoming  rich;  so  it  is  fair  to  assume  that  Lin- 
coln was  not  receiving  the  lion's  share  of  the 
profits.  It  would  have  been  surprising  if  business 
had  not  been  prosperous,  for  the  partners 
worked  together  in  entire  harmony,  and  Spring- 
field was  at  that  time  the  center  of  all  things 
legal  in  Illinois.  Not  only  were  the  United 
States  courts  located  there,  but  the  County 
Court,  the  Circuit  Court,  and  the  Supreme 
Court  (the  tribunal  of  last  resort) ,  and  the  State 
legislature  likewise,  held  their  sessions  in  the  city, 
and  the  indications  are  that  the  firm  reaped  a  rich 
harvest  from  all  these  fields  of  legal  endeavor. 

Success  in  the  courts  is  not  an  infallible  crite- 
rion of  legal  ability,  but  it  is  an  interesting  fact 
that  Lincoln  argued  no  less  than  fourteen 
appeals  before  the  Supreme  Court  at  the  De- 
cember term  of  1841,  and  succeeded  in  all  of 

125 


LINCOLN  THE  LAWYER 

them  but  four,  a  record  which  was  not  surpassed 
even  by  Logan  himself;  and,  between  them,  the 
partners  well-nigh  monopolized  that  court  at  the 
terms  of  1842-3.  In  that  period  they  argued 
twenty-four  final  appeals,  and  won  all  of  them 
but  seven,  a  fact  which  not  only  indicates  the 
extent  of  their  practice,  but  affords  a  fair  infer- 
ence of  their  success  in  other  courts.1 

Under  the  circumstances,  it  is  not  surprising 
that  Lincoln  gave  little  attention  to  politics  dur- 
ing his  partnership  with  Logan,  though  he  did 
not  altogether  withdraw  from  public  life.  The 
mention  of  his  name  for  the  governorship  in 
1841  had  been  serious  enough  to  call  for  a  semi- 
official declination;  but  there  was  no  organized 
effort  made  to  induce  him  to  accept  the  nomina- 
tion, and  the  subject  was  dropped.  Despite  his 
close  attention  to  business  he  was,  nevertheless, 
more  or  less  active  in  the  councils  of  the  Whig 
party  during  the  first  two  years  of  his  associa- 
tion with  Logan,  and  in  1843  he  became  chair- 
man of  the  local  convention,  drew  the  politi- 
cal   platform    and    otherwise    manifested    keen 

1  Some  of  the  records  of  the  Illinois  circuit  courts  have  been 
destroyed  by  fire,  but  the  writer  frequently  noted  Lincoln's  name 
in  the  judge's  minutes,  and  found  other  indications  that  he  was 
at  this  time  doing  his  share  of  circuit  work. 

126 


JUDGE  LOGAN  AND  LINCOLN 

interest    in    party    matters,    at    the    same    time 
becoming  an  active  candidate  for  the  congres- 


.:mn 


,  7 


j —  '- 


9 


Dtawn  by  Harry  Fenn  from  a  photograph 

The  building  in  Springfield  on  the  third  floor 
of  which  was  the  office  of  Logan  &  Lincoln 

sional  nomination.     His  most  formidable  rival 
for    this    honor    was    Baker,    Logan's    former 
8  127 


LINCOLN  THE  LAWYER 

partner;  but  neither  man  was  strong  enough  to 
carry  the  convention,  and  John  J.  Hardin, 
another  prominent  member  of  the  bar,  was 
named  and  elected.  The  following  year  Baker 
and  Lincoln  were  again  mentioned  for  the  same 
office,  but  Lincoln  refused  to  contest  the  place 
with  his  friend  and  fellow-member  at  the  bar, 
who  had  long  set  his  heart  upon  obtaining  the 
prize,  and  to  whom  defeat  would  have  brought 
great  bitterness.  Indeed,  Baker's  political 
ambitions  were  almost  boundless,  and  in  after 
years  Judge  Davis  used  to  tell  a  story  about  him 
to  the  effect  that  when  he  first  read  the  Consti- 
tution of  the  United  States  and  discovered  that 
no  one  but  a  native  American  could  be  President, 
lie  burst  into  tears,  bewailing  the  fact  that  he 
was  ineligible,  having  been  born  in  England. 
Largely  as  a  result  of  Lincoln's  withdrawal, 
Baker  received  the  coveted  nomination,  and 
was  subsequently  elected  to  Congress,  afterward 
becoming  the  leader  of  the  California  bar  and 
United  States  senator  from  Oregon.  There  was 
certainly  a  strange  fatality  about  these  early 
congressional  contests,  for  each  of  the  three 
friendly  competitors  died  for  his  country 
in    the    order    of    his    election— Hardin    gal- 

128 


JUDGE  LOGAN  AND  LINCOLN 

lantly  leading  his  troops  in  a  charge  at 
the  battle  of  Buena  Vista  in  the  Mexican  War, 
Baker  while  commanding  his  regiment  at  the 
disastrous  battle  of  Ball's  Bluff  in  18G1,  and 
Lincoln  at  the  head  of  the  nation. 

There  is  reason  to  suppose  that  Logan,  know- 
ing his  partner's  deficiencies  in  the  law,  origin- 
ally intended  to  utilize  his  talents  as  a  jury  advo- 
cate; but  after  Lincoln  began  to  study  in  earn- 
est, he  developed  other  qualities  which  made  him 
quite  as  effective  with  the  court  as  he  was  with 
the  jury,  and  the  two  men  were  thereafter  con- 
stantly together  in  all  sorts  of  legal  work.  "He 
would  study  out  his  case  and  make  about  as 
much  of  it  as  any  one,"  Logan  remarked, 
speaking  of  his  partner  many  years  afterward. 
"His  ambition  as  a  lawyer  increased;  he  grew 
constantly.  By  close  study  of  each  case  as  it 
came  up  he  got  to  be  quite  a  formidable  lawyer." 

It  has  been  stated  that  under  Logan's  tutelage 
Lincoln  became  a  "case-lawyer,"  but  this  is  not 
true  if  a  case-lawyer  be  one  who  has  at  his 
tongue's  end  all  the  precedents  affecting  any 
given  state  of  facts,  and  who  is  lost  unless  his 
legal  trail  is  plainly  blazed.  But  if  the  term 
describes  one  who  makes  no  excursions  into  the 

129 


LINCOLN  THE  LAWYER 

field  of  general  legal  knowledge  and  is  not  con- 
cerned with  its  theories  and  philosophy,  then  Lin- 
coln may  properly  be  described  as  a  case-law 
yer.    He  met  each  problem  as  it  presented  itself, 

i3 


2<-<rus5       AwZS"       J,<r~;     Z&^^ev     ^fa^CT  &£  x6g£" 


7 


From  the  collection  of  Major  William  H.  Lambert 

Beginning  and  conclusion  of  a  legal  document  in  Lincoln's 
handwriting,  signed  Logan  and  Lincoln 

attempting  to  do  only  one  thing  at  a  time,  con- 
centrating the  whole  power  of  his  mind  upon  the 
subject  in  hand  until  he  mastered  it,  and  never 
forgetting  any  item  of  information  when  once 
acquired.  His  mind,  he  remarked,  was  like  a 
piece  of  steel — very  hard  to  scratch,  but  almost 
impossible  to  free  of  any  mark  once  made 
upon  it.  He  did  not  trouble  himself  to  analyze 
the  subtleties  and  labored  profundities  of  the 

130 


JUDGE  LOGAN  AND  LINCOLN 

law,  and  never  made  the  slightest  pretense  to  aca- 
demic knowledge.  For  real  scholarship  he  had, 
of  course,  a  profound  respect,  but  the  pseudo- 
learning  often  displayed  in  the  courts  only 
amused  him.  On  one  occasion  a  lawyer  against 
whom  he  was  practising  quoted  a  Latin  maxim, 
and  then,  either  to  impress  his  hearers  or  to  em- 
barrass his  adversary,  added,  "Is  not  that  so,  Mr. 
Lincoln?" 

"If  that  is  Latin,"  Lincoln  responded  dryly, 
"I  think  you  had  better  call  another  witness." 

While  Logan  and  Lincoln  were  practising 
together  certain  changes  were  made  in  the  judi- 
ciary, and  among  the  new  judges  elected  by  the 
legislature  was  Stephen  Arnold  Douglas,  then 
in  his  twenty-eighth  year.  Judge  Douglas  pre- 
sided over  the  Fifth  Circuit,  and  Lincoln's  prac- 
tice was  almost  entirely  in  the  Eighth;  but  in 
those  days  the  circuit  judges,  as  a  body,  formed 
the  Supreme  (appellate)  Court,  and  Lincoln 
must  have  argued  many  cases  before  his  future 
rival  for  Senatorial  and  presidential  honors,  and 
in  one  case  (Grubb  v.  Crane,  5  Ills.,  153)  Doug- 
las delivered  the  prevailing  opinion  of  the  court 
in  Lincoln's  favor. 

The  exact  date  of  the  dissolution  of  Logan  & 

131 


LINCOLN  THE  LAWYER 

Lincoln's  partnership  is  not  clear,  but  their 
names  appear  together  in  the  case  of  Rogers  v. 
Dickey  (6  Ills.,  636),  argued  in  November,  1843, 
and  they  were  opposed  to  each  other  in  Kelly  v. 
Garrett  (6  Ills.,  649)  in  March,  1844,  so  the  sep- 
aration must  have  taken  place  sometime  between 
these  two  dates.  Mr.  Herndon  says  that  politi- 
cal rivalry  was  at  the  bottom  of  the  dissolution, 
and  hints  that  Logan  desired  the  nomination  for 
Congress  which  eventually  went  to  Lincoln. 
This  may  have  been  so,  but  it  is  difficult  to  see 
how  Lincoln's  nomination  in  1846  could  have 
caused  the  partners  to  separate  in  1844,  and  the 
fact  is  that  Logan  himself  made  the  speech  which 
nominated  his  ex-partner  for  Congress,  fought 
hard  to  make  him  United  States  senator  from 
Illinois,  and  remained  his  warm  friend  and  sup- 
porter as  long  as  he  lived.  The  real  cause  of  the 
dissolution  of  the  firm  is  to  be  found  in 
the  character  and  temperament  of  the 
two  men.  Lincoln  was  naturally  independent, 
and  he  outgrew  the  guidance  of  his  preceptor. 
He  was  a  born  leader,  and  not  a  subordinate, 
and  it  was  against  his  nature  to  remain  in  a  posi- 
tion of  dependence  any  longer  than  was  neces- 
sary. Therefore,  the  moment  he  felt  strong 
enough,  he  started  out  for  himself. 

132 


JUDGE  LOGAN  AND  LINCOLN 

It  is,  however,  impossible  to  overestimate  the 
influence  which  Logan  exerted  upon  his  asso- 
ciate. He  laid  the  foundations  upon  which  Lin- 
coln built  his  legal  career,  and  there  was  no  other 
lawyer  in  Illinois  who  could  have  given  him  any- 
thing like  the  same  incentive  and  training. 
Indeed,  there  is  no  legal  reputation  in  the  State 
to-day  which  is  more  secure  than  Logan's,  and 
time  has  only  confirmed  the  judgment  of  his 
peers.  The  Hon.  David  Davis,  after  ten  years' 
experience  as  circuit  judge  and  fifteen  years' 
service  on  the  bench  of  the  Supreme  Court  of 
the  United  States,  declared  that  he  was  the  ablest 
lawyer  he  had  ever  met,  and  his  opinion  justifies 
the  conclusion  that  Lincoln  in  his  second  part- 
nership came  into  touch  with  one  of  the  most 
extraordinary  legal  minds  in  the  country. 

i  A  young  lawyer  once  askerl  Lincoln  if  the  county-seat  of 
Logan  County  was  named  after  him.  "Well,  it  was  named  after 
I  was,"  Mr.  Lincoln  responded  gravely. 


133 


XIV 

LINCOLN  THE  HEAD  OF  A  LAW  FIRM 

IT  required  no  little  courage  and  self-confidence 
for  Lincoln  to  sever  his  relations  with  Logan, 
for  he  and  his  family  were  entirely  dependent 
upon  his  earnings,  and  when  he  left  the  judge's 
office  he  had  not,  strictly  speaking,  a  client  whom 
he  could  call  his  own.  Until  that  time  he  had 
never  been  obliged  to  face  the  difficulties  of 
building  up  a  practice,  for  he  had  stepped  into 
an  established  business  when  Stuart  gave  him 
his  start  in  the  law,  and  a  ready-made  clientage 
awaited  him  in  the  partnership  with  Logan. 
Doubtless  he  had  strengthened  and  increased  the 
judge's  business,  but  he  was  not  entitled,  as  a 
matter  of  right,  to  any  definite  share  of  it  when 
he  left,  and  the  fact  that  clients  cannot  be  par- 
celed off  like  merchandise  would  have  prevented 
a  partition  of  the  patronage  in  any  case.  Of 
course  the  retiring  member  of  a  law  firm  is  justi- 

134 


HEAD  OF  A  LAW  FIRM 

fied  in  accepting  any  clients  who  voluntarily 
follow  him  to  his  new  office,  but  there  is  a 
delicate  professional  courtesy  to  be  observed  in 
such  matters,  and  Lincoln  was  not  the  sort  of 
man  who  would  willingly  supplant  an  ex-asso- 
ciate. It  is  not  probable,  therefore,  that  he 
counted  on  acquiring  any  of  Logan's  business 
when  he  left  him,  and  there  is  no  indication  that 
the  two  men  ever  had  the  slightest  misunder- 
standing over  any  such  question. 

But  though  he  had  no  business  following, 
Lincoln  had  good  reasons  for  believing  that  he 
could  hold  his  own  in  the  practice  of  the  law  at 
Springfield.  He  had  a  wide  acquaintance  in 
the  neighborhood,  he  was  popular  with  all  sorts 
and  conditions  of  men,  and  he  knew  himself  to 
be  the  peer  of  his  competitors  at  the  local  bar. 
Lincoln  was  modest,— modest  to  the  point  of 
humility,— but  he  was  always  properly  aware  of 
his  own  abilities.  He  never  boasted  of  what  he 
could  or  would  accomplish,  but  he  did  not 
attempt  to  discount  failure  with  self-deprecia- 
tion, knowing  that  excuses  have  merely  a  per- 
sonal interest  and  that  accomplishment  makes  its 
own  claims.  He  did  not  challenge  events,  but 
met    them    boldly,    instinctively    responding    at 

135 


HEAD  OF  A  LAW  FIRM 

every  crisis  to  the  latent  powers  within  him;  and 
in  a  large  measure  this  was  the  secret  of  his  suc- 
cess. 

It  was  in  this  spirit  that  he  faced  the  future 
when  he  withdrew  from  the  valuable  alliance 
with  Judge  Logan.  He  thought  he  could  stand 
alone,  and,  feeling  his  own  strength,  he  was  anx- 
ious to  match  himself  against  his  contemporaries, 
relying  solely  on  his  own  resources.  There  was 
no  assumption  of  superiority  in  this.  It  was  the 
natural  desire  of  a  strong  man  with  a  stout 
heart. 

But  though  he  believed  in  himself  and  made 
his  hazard  of  new  fortunes  without  misgiving, 
Lincoln  was  neither  adventurous  nor  sanguine 
by  nature.  Even  as  a  boy  he  had  not  displayed 
the  usual  confidence  of  youth,  and  in  his  first 
public  address  he  advised  the  voters  of  Sanga- 
mon County  that  he  was  already  too  familiar 
with  disappointments  to  be  very  much  chagrined 
if  his  aspirations  met  with  defeat.  He  was  not 
exactly  despondent,  but  there  was  a  suggestion 
of  fatalism  in  his  mental  attitude  toward  many 
questions;  and,  as  he  matured  and  his  responsi- 
bilities increased,  he  became  more  and  more 
thoughtful,  serious,  and  inclined  to  deep  deprefc- 

137 


LINCOLN  THE  LAWYER 

sion.  Indeed,  at  one  time— just  before  he 
joined  Judge  Logan — he  was  actually  threat- 
ened with  melancholia,  induced  by  a  combined 
attack  of  "engagement  fever"  and  malaria,  and 
all  his  life  he  fought  despondency  with  jest  and 
joke  and  story,  winning  where  most  men  would 
have  lost.  Humor  was  the  talisman  with  which 
he  exercised  "the  fretful  fiends  of  doubt  and 
care." 

If  Lincoln  had  yielded  to  his  natural  tenden- 
cies and  encouraged  self -distrust  at  the  moment 
of  parting  with  Judge  Logan,  he  could  easily 
have  found  another  partner  with  a  ready-made 
practice  in  Springfield;  for  there  were  a  number 
of  well-established  lawyers  who  would  have  been 
only  too  glad  to  make  generous  terms  with 
Logan's  ex-associate.  His  days  of  even  quasi- 
dependence  were  over,  however,  and  he  was 
ambitious  to  be  the  head  and  front  of  his  own 
business.  Of  course  the  simplest  method  of 
accomplishing  this  would  have  been  to  practise 
by  himself.  Yet  had  he  started  out  absolutely 
alone,  he  would  have  been  obliged  to  undertake 
all  his  own  office  work,  for  law  clerks  were  not 
easily  procured  in  those  days,  and  he  was  utterly 
unfitted  by  nature  for  coping  with  small  drudg- 

138 


William  H.  Herndon 


HEAD  OF  A  LAW  FIRM 

eries.  Moreover,  it  so  happened  that  one  of  his 
friends,  recently  admitted  to  the  bar,  was  in  need 
of  just  the  start  which  a  junior  partnership  pro- 
vided, and  it  was  under  these  circumstances  that 
he  offered  William  Henry  Herndon  the  chance 
of  his  life. 

It  is  a  curious  coincidence  that  all  three  of 
Lincoln's  partners  were,  like  him,  natives  of 
Kentucky;  but  Herndon's  family  had  moved  to 
Illinois  when  he  was  a  mere  child,  and  his  youth 
had  been  passed  in  the  neighborhood  of  Spring- 
field. He  was  nine  years  younger  than  his  senior 
partner,  whom  he  had  first  encountered  on  the 
eventful  occasion  when  Lincoln  had  piloted  the 
gallant  steamer  Talisman  in  her  attempt  to  force 
the  passage  of  the  Sangamon,  and  this  acciden- 
tal meeting  led  to  a  closer  acquaintance,  which 
was  turned  to  friendship  through  an  incident 
connected  with  the  murder  of  Elijah  Love  joy, 
the  Abolitionist. 

Herndon  was  a  student  in  the  college  at  Jack- 
sonville, Illinois,  when  Love  joy  set  up  his  anti- 
slavery  press  at  Alton  and  began  the  campaign 
which  resulted  in  his  death  at  the  hands  of  a  mob. 
The  crime  aroused  violent  excitement  through- 
out the  State.    Indignation  meetings  were  held, 

141 


LINCOLN  THE  LAWYER 

speeches  were  made,  and  violent  condemnation 
of  the  outrage  was  expressed  in  every  form. 
Indeed  the  Jacksonville  students  voiced  their 
sentiments  so  openly  that  Herndon's  father,  a 
pronounced  slavery  man,  withdrew  his  son  from 
the  college,  fearing  that  his  mind  would  be  poi- 
soned by  the  Abolition  doctrines.  But  the 
young  man  returned  to  Springfield  with  his 
opinions  already  formed,  and  it  was  undoubtedly 
his  bold  anti-slavery  utterances  at  a  time  when 
the  people  of  Illinois  picked  their  words  very 
carefully  on  the  negro  question  which  cemented 
his  friendship  with  Lincoln. 

Like  his  future  partner,  Herndon  was  first 
employed  as  a  clerk  in  a  grocery  store,  and 
although  he  does  not  say  so  in  his  biography,  it 
is  highly  probable  that  Lincoln  procured  the 
position  for  him,  as  his  employer  was  Joshua 
Speed,  Lincoln's  most  intimate  friend.  More- 
over, despite  Herndon's  silence  on  the  subject, 
there  is  every  reason  to  suppose  that  it  was  Lin- 
coln who  encouraged  his  young  friend  to  study 
law.  Certainly  his  legal  apprenticeship  was 
passed  in  Logan  &  Lincoln's  office,  and  under 
all  the  circumstances  it  is  not  strange  that  his 
preceptor  should  have  kept  an  eye  on  him,  and 
taken  the  first  opportunity  to  advance  his  for- 

142 


HEAD  OF  A  LAW  FIRM 

tunes  after  his  admission  to  the  bar.  It  should 
be  stated,  however,  that  Herndon  does  not 
explain  the  partnership  in  this  fashion;  but, 
unfortunately,  he  is  not  the  most  reliable  of 
chroniclers,  and  there  is  abundant  evidence  that 
he  failed  to  appreciate  the  situation.  Many 
years  afterward  a  Chicago  lawyer  quoted  Lin- 
coln as  saying  that  he  had  selected  Herndon,  sup- 
posing him  to  be  a  good  business  man  who  would 
keep  the  office  affairs  in  order,  but  soon  discov- 
ered that  he  had  no  more  system  than  he  himself, 
and  was  in  reality  a  good  lawyer,  "thus  proving 
a  double  disappointment."  Herndon  ingenu- 
ously printed  this  explanation  in  his  "True  Story 
of  a  Great  Life,"  and  evidently  accepted  it  with 
no  little  complacency.  But  whatever  Lincoln 
may  have  thought  of  his  subordinate's  legal 
attainments  in  later  years, — and  there  is  some 
evidence  that  Herndon  grew  to  be  a  fair  lawyer, 
—it  is  not  likely  that  he  ever  placed  much  depen- 
dence on  his  orderly  habits;  for  he  must  have 
been  thoroughly  acquainted  with  his  shortcom- 
ings in  this  and  other  respects  long  before  he 
generously  offered  him  his  start  in  life. 

Certainly  there  never  was  an  office  conducted 
with  less  method,  and  Herndon  was  the  last  man 
in  the  world  who  could  have  set  things  right.    It 

143 


LINCOLN  THE  LAWYER 

must  be  admitted,  however,  that  Lincoln  would 
probably  have  defeated  the  most  capable  and 
persistent  of  managers  in  any  case;  for  the  only 
method  he  ever  personally  introduced  into  the 
firm's  affairs  was  the  immediate  division  of  all 
fees  which  came  into  his  hands,  giving  his  part- 
ner his  share  at  once,  if  he  happened  to  be  pres- 
ent, or  placing  it  in  an  envelope  indorsed, 
"Smith  17.  Jones— Herndon's  half,"  if  he 
chanced  to  be  away.  This  was  the  beginning 
and  the  end  of  office  organization  as  far  as  the 
senior  partner  was  concerned. 

Despite  its  slack  business  methods,  however, 
the  firm  of  Lincoln  &  Herndon  met  with  fair 
success,  the  junior  partner  making  a  good  cleri- 
cal assistant  in  the  drawing  of  pleadings  and 
the  minutiae  of  procedure,  and  in  1844-5  the 
senior  partner  argued  no  less  than  thirty-three 
appeals  before  the  Supreme  Court,  an  excellent 
first-year  record.1  Doubtless  he  would  have 
been   even   more   successful   at   the   outset   had 

i  The  writer's  examination  of  the  Illinois  Circuit  Court  records 
shows  that  Lincoln  conducted  all  the  trial  work  of  the  firm  at 
this  period.  It  is  stated  in  the  third  volume  of  the  McLean  County 
Historical  Society's  transactions  that  Herndon  never  did  any 
circuit  work  during  his  partnership  with  Lincoln;  but  this  is 
manifestly  an  error,  for  his  name  appears  frequently  in  the  records 
of  later  years. 

144 


HEAD  OF  A  LAW  FIRM 

he  devoted  himself  exclusively  to  the  law,  but  in 
1845  he  was  again  a  candidate  for  the  congres- 
sional nomination,  and  his  preparation  for  the 


tru^c 


(*/7lrf>~u*^     cS7-?-/l*-*-^>-^£' 


/im 


JPa^-^^  i  ft  7> . 


'S 


tfir    'pit,     cs>~~^; 


6-0  ^X-v-- 


s^ZjCZo      ff^^f^*    c 


From  the  collection  of  Major  William  H.  Lambert 

Legal  document  in  Lincoln's  handwriting,  signed  with  the  firm 
name,  and  by  Lincoln,  personally,  as  security  for  costs 

campaign  necessarily  diverted  his  attention. 
The  election  took  place  in  1846,  and,  after  a 
sharp  contest,  he  was  returned  by  a  large  major- 
ity over  Peter  Cartwright,  the  itinerant  preacher, 
who  had  been  one  of  his  successful  rivals  in  his 


145 


LINCOLN  THE  LAWYER 

first  canvass  for  the  legislature,  and  whose 
grandson  he  was  destined  to  save  from  the 
gallows  by  a  remarkable  and  dramatic  appeal 
to  the  jury. 

The  partnership  of  Lincoln  and  Herndon  did 
not  immediately  terminate  as  a  result  of  his 
election;  for  Congress  did  not  convene  until  late 
in  the  next  year,  and  the  firm  continued  in  active 
practice  until  the  senior  member  left  for  Wash- 
ington. 

Lincoln  was  then  in  his  thirty-ninth  year. 
His  life  had  been  eventful,  his  rise  from  abso- 
lute obscurity  phenomenal,  and  his  influence  in 
his  own  State  and  party  remarkable.  But  the 
character  of  the  man  is  well  illustrated  in  the 
account  which  he  gave  of  himself  in  the  "Con- 
gressional Dictionary,"  and,  in  view  of  some  of 
the  voluminous  memoirs  of  later  members  which 
adorn  the  modern  official  directory,  his  contri- 
bution is  suggestive  and  instructive.  It  contains 
just  forty-eight  words,  and  reads  as  follows: 

Born  February  12,  1809,  in  Hardin  County, 
Kentucky. 

Education,  defective. 

Profession,  a  lawyer. 

146 


HEAD  OF  A  LAW  FIRM 

Have  been  a  captain  of  volunteers  in  Black 
Hawk  War. 

Postmaster  in  a  very  small  office. 

Four  times  a  member  of  the  Illinois  legisla- 
ture and  a  member  of  the  lower  house  of  Con- 
gress. 


147 


XV 

LINCOLN    THE  LAWYER  IN  CONGRESS 

LINCOLN  took  his  new  honors  very  simply, 
J  even  a  little  sadly.  "Being  elected  to  Con- 
gress," he  wrote,  "though  I  am  grateful  to  our 
friends  for  having  done  it,  has  not  pleased  me 
as  much  as  I  expected."  Later  he  wrote  of  his 
experiences:  "I  find  speaking  here  and  else- 
where about  the  same  thing.  I  am  about  as 
badly  scared  and  no  worse  than  I  am  when  I 
speak  in  court."  But,  unlike  the  Irishman  he 
was  fond  of  telling  about,  whose  heart  was  as 
valiant  as  any  one's,  but  whose  cowardly  legs 
would  run  away  with  him  at  the  approach  of 
danger,  Lincoln  conquered  his  timidity  and 
speedily  displayed  a  courage  of  which  no  mere 
politician  would  have  been  capable. 

In  1840,  Texas  had  declared  its  independence, 
and  under  the  terms  of  a  treaty  made  with  the 
Mexican  general  Santa  Anna,  the  new  republic 

148 


IN  CONGRESS 

claimed  the  east  bank  of  the  Rio  Grande  from 
source  to  mouth  as  its  proper  and  legal  bound- 
ary. It  is  true  that  Santa  Anna  had  made  such 
a  treaty,  but  as  it  was  signed  while  that  not  too 
valiant  gentleman  was  a  prisoner  and  in  fear  of 
his  life,  his  acceptance  of  his  captors'  ideas  as  to 
boundaries  could  hardly  be  regarded  as  binding 
on  his  country,  especially  in  view  of  the  fact  that 
Mexico  had  promptly  repudiated  his  alleged 
treaty  and  continued  the  war  it  was  supposed 
to  have  settled.  Under  ordinary  circumstances 
it  is  doubtful  if  the  United  States  would  have 
insisted  upon  the  very  questionable  title  of  Texas 
to  the  area  in  dispute;  but  the  new  republic  had 
applied  for  admission  to  the  Union  and  the  pro- 
visions of  the  act  admitting  it  created  a  tempta- 
tion which  the  politicians  of  the  country  were 
unable  to  resist.  The  pro-slavery  party  in  the 
national  legislature  was  beginning  to  need  rein- 
forcements, especially  in  the  Senate,  and  the  act 
conferring  statehood  upon  Texas  provided  that 
several  States  might  be  carved  out  of  the 
acquired  territory;  and  as  each  new  State  meant 
two  votes  in  the  Senate  this  legislation  promised 
to  offset  the  admission  of  free  States  and  keep 
the  dominant  party  in  control.    Then,  as  a  sop  to 

149 


LINCOLN  THE  LAWYER 

the  anti-slavery  agitators,  it  was  solemnly 
enacted  that  in  such  of  the  new  States  as  lay 
north  of  36°  30'  (the  Missouri  Compromise  line) 
slavery  should  be  absolutely  prohibited,  while  in 
those  which  lay  south  of  that  boundary  slavery 
might  exist  or  might  not,  as  the  constitutions  of 
the  new  States  provided.  When  it  is  remembered 
that  no  land  claimed  by  Texas  lay  north  of  36°  30', 
the  farcical  nature  of  this  concession  is  apparent ; 
but  it  won  enough  votes  in  the  Presidential  cam- 
paign to  insure  the  admission  of  the  proposed 
new  State,  and  the  pro-slavery  politicians  had 
every  incentive  to  make  its  dimensions  as  gener- 
ous as  possible.  Under  all  the  circumstances, 
President  Polk  interpreted  his  election  as  a 
popular  mandate  to  support  the  Texan  claims, 
and  the  moment  the  State  was  admitted  to  the 
Union  he  ordered  the  army  to  occupy  the  dis- 
puted territory,  and  the  country  accepted  the 
war  which  followed  in  an  outburst  of  enthusiasm 
over  the  success  of  our  arms. 

Such  was  the  situation  when  Lincoln  took  his 
seat  in  Congress;  but  although  some  of  his 
warmest  friends  were  at  the  front  and  almost  all 
his  constituents  approved  of  the  war,  he  would 
not  close  his  eyes  to  the  facts  and  refused  to  be 

150 


IN  CONGRESS 

dazzled  by  military  glory.  There  was  a  great 
chance  for  the  orator  and  cheap  patriot  in  the 
fact  that  a  mere  handful  of  Americans  was  scat- 
tering thousands  of  Mexicans  in  every  battle, 
and  Lincoln  was  urged  to  make  the  most  of  his 
opportunity  and  distinguish  himself.  But 
although  he  knew  what  was  expected  of  him  and 
what  alone  would  satisfy  his  friends,  and  was 
well  aware  that  no  critic  of  his  country  is  toler- 
ated while  its  foes  are  under  arms,  he  refused  to 
compromise  with  his  conscience  and  fought  the 
government  policy  with  all  his  might  and  main. 
Then  for  the  first  time  in  his  public  life  his  power 
and  training  as  a  lawj^er  were  called  into  play, 
and  in  a  series  of  questions  which  no  one  but  a 
skilful  cross-examiner  could  have  phrased  he  dis- 
posed of  the  casuistical  explanations  of  the  war. 
President  Polk,  in  his  several  messages  to 
Congress,  had  repeatedly  referred  to  "the  Mex- 
ican invasion  of  our  territory  and  the  blood  of 
our  fellow-citizens  shed  on  our  soil"  and  quot- 
ing these  statements  as  his  text,  Lincoln  intro- 
duced his  now  famous  "Spot  Resolutions," 
wherein  the  President  was  requested  to  answer 
eight  questions  calculated  to  inform  the  House 
whether  the  particular  spot  on  which  the  blood 

151 


LINCOLN  THE  LAWYER 

of  our  citizens  was  shed  was  or  was  not  at  that 
time  "our  own  soil."  There  was  no  escape  for 
the  Executive  from  these  questions:  they  were 
pertinent,  penetrating,  and  not  without  a  certain 
grave  humor,  and  each  was  so  drawn  as  to  pre- 
clude the  possibility  of  equivocation  or  evasion. 
Moreover,  they  showed  an  historical  knowledge 
of  the  facts  which  could  not  be  trifled  with,  and 
no  one  supporting  the  governmental  policy 
could  possibly  have  answered  them  all  without 
being  caught  in  a  contradiction. 

Resolved  by  the  House  of  Representatives  [they  began], 
That  the  President  of  the  United  States  be  respectfully 
requested  to  inform  this  House — 

First.  Whether  the  spot  on  which  the  blood  of  our  citi- 
zens was  shed,  as  in  his  messages  declared,,  was  or  was  not 
within  the  territory  of  Spain,  at  least  after  the  treaty  of 
1819  until  the  Mexican  revolution. 

Second.  Whether  that  spot  is  or  is  not  within  the  terri- 
tory which  was  wrested  from  Spain  by  the  revolutionary 
government  of  Mexico. 

Third.  Whether  that  spot  is  or  is  not  within  a  settle- 
ment of  people,  which  settlement  existed  long  before  the 
Texas  revolution  and  until  its  inhabitants  fled  before  the 
approach  of  the  United  States  Army. 

Fourth.  Whether  that  settlement  is  or  is  not  isolated  from 
any  and  all  other  settlements  by  the  Gulf  and  the  Rio 
Grande  on  the  south  and  west,  and  by  wide  uninhabited 
regions  on  the  north  and  east. 

Fifth.      Whether   the    people  of   that    settlement,    or    a 

152 


IN  CONGRESS 

majority  of  them,  or  any  of  them,  have  ever  submitted 
themselves  to  the  government  or  laws  of  Texas  or  of  the 
United  States,  by  consent  or  by  compulsion,  either  by 
accepting  office,  or  voting  at  elections,  or  paying  tax,  or 
serving  on  juries,  or  having  process  served  upon  them,  or 
in  any  other  way. 

Sixth.  Whether  the  people  of  that  settlement  did  or  did 
not  flee  from  the  approach  of  the  United  States  army,  leav- 
ing unprotected  their  homes  and  their  growing  crops,  before 
the  blood  was  shed,  as  in  the  messages  stated;  and  whether 
the  first  blood  so  shed  was  or  was  not  shed  within  the 
inclosure  of  one  of  the  people  who  had  thus  fled  from  it. 

Seventh.  Whether  our  citizens  whose  blood  was  shed, 
as  in  his  messages  declared,  were  or  were  not  at  that  time 
armed  officers  and  soldiers,  sent  into  that  settlement  by  the 
military  order  of  the  President,  through  the  Secretary  of 
War. 

Eighth.  Whether  the  military  force  of  the  United  States 
was  or  was  not  so  sent  into  that  settlement  after  General 
Taylor  had  more  than  once  intimated  to  the  War  Depart- 
ment that  in  his  opinion  no  such  movement  was  necessary  to 
the  defense  or  protection  of  Texas. 

No  interpellation  of  a  government  was  ever 
phrased  in  more  telling  questions.  They  were 
unanswerable,  and  the  administration  sought 
safety  in  silence. 

Lincoln  soon  heard  from  these  "Spot  Resolu- 
tions," his  home  friends  protesting  vehemently 
that  he  ought  not  to  antagonize  the  gov- 
ernment in  the  face  of  a  foreign  war, 
and     his     political     opponents     seizing     upon 

153 


LINCOLN  THE  LAWYER 

his  action  to  fasten  the  charge  of  unpatri- 
otic conduct,  if  not  treason,  on  his  party. 
But  neither  reproaches  nor  aspersions  caused 
Lincoln  to  change  his  attitude.  To  his  friends 
he  explained  that  he  would  vote,  and  had  always 
voted,  for  whatever  was  necessary  for  the  sup- 
port of  the  army  in  the  field,  but  the  policy  which 
had  sent  it  there  was  a  national  disgrace  which 
could  not  be  palliated  with  self-respect  and 
honor.  The  claim  that  the  war  was  not  aggres- 
sive reminded  him,  he  declared,  of  the  Illinois 
farmer  who  asserted:  "I  ain't  greedy  'bout  land. 
I  only  just  wants  what  jines  mine." 

But  Whigs  and  Democrats  alike  were  carried 
away  by  the  war  enthusiasm.  Even  those  who 
did  not  wholly  approve  of  the  Government's 
attitude  accepted  the  result  with  patriotic 
satisfaction,  and  it  was  with  keen  delight  that 
Lincoln  saw  the  administration  lose  all  political 
advantage  from  its  policy  by  the  Whig  nomin- 
ation of  the  war-hero  Taylor  for  the  Presidency, 
which,  Lincoln  declared,  "took  the  Democrats 
on  their  blind  side."  But  though  the  popularity 
of  his  party's  candidate  was  due  to  achievements 
in  the  field,  the  Illinois  congressman  urged  his 
friends  not  to  abate  their  criticisms  of  the  war 

154 


IN  CONGRESS 

or  excuse  it  in  any  way.  General  Taylor  was  a 
brave  soldier  who  obeyed  orders  even  when  he 
did  not  personally  approve  them,  he  declared, 
but  his  candidacy  did  not  demand  an  indorse- 
ment of  the  war,  and  any  such  action  would 
imperil  the  position  of  the  party.  "In  law"  he 
wrote  to  General  Linder,  "it  is  good  policy  never 
to  plead  what  you  need  not,  lest  you  oblige  your- 
self to  prove  what  you  cannot." 

Never  was  a  legal  maxim  more  happily  para- 
phrased or  more  aptly  applied.  Even  in  party 
politics  the  keen  lawyer  is  apparent  in  Lincoln's 
every  move. 

The  new  congressman's  activities  were  not, 
however,  confined  to  combating  and  exposing 
the  administration's  policies,  but  quietly  and 
unobtrusively  he  was  working  for  a  cause  in 
which  his  heart  and  soul  were  enlisted.  As 
early  as  1837,  while  in  the  Illinois  legisla- 
ture, he  had  placed  himself  upon  record  as  op- 
posing the  extension  of  slavery  and  favoring 
its  exclusion  from  the  District  of  Columbia, 
and  he  had  not  been  long  in  Washington  be- 
fore he  put  his  theories  to  the  test.  Here 
again  the  mind  and  hand  of  a  shrewd  lawyer 
are  strongly  evidenced.     It  was  his  legal  train- 

155 


LINCOLN  THE  LAWYER 

ing  which  taught  Lincoln  the  value  of  col- 
lateral attack.  He  knew,  as  a  lawyer,  that  an 
unobtrusive  precedent  sometimes  decides  a 
mighty  issue,  and  that  it  is  often  good  legal  tac- 
tics to  anticipate  the  coming  of  great  events  by 
establishing  the  law  in  some  minor  litigation. 
Doubtless  it  was  with  this  intent  that  he  quietly 
prepared  his  bill  for  gradual  compensatory  eman- 
cipation of  the  slaves  in  the  tiny  District  of  Co- 
lumbia, and  obtained  support  for  the  measure  in 
high  quarters.  How  nearly  he  succeeded  in  creat- 
ing this  precedent  is  a  matter  of  history,  but  it 
was  not  fated  that  the  far-sighted  lawyer  should 
succeed  in  his  skilful  move,  and  the  measure 
never  came  to  vote.  Had  his  manceuver  been 
supported,  it  is  more  than  possible  that  the  great- 
est issue  of  our  time  would  have  been  judicially 
decided  instead  of  being  left  to  the  arbitrament 
of  arms. 

At  the  close  of  the  congressional  session  Lin- 
coln visited  New  England  for  the  first  time, 
making  political  addresses  for  Taylor  at  Boston, 
Dedham,  Roxbury,  Cambridge,  and  other  places, 
and  his  speeches  attracted  some  favorable  notice ; 
but  after  a  short  tour  he  returned  to  Springfield, 
resolved  to  retire  from  politics  at  the  end  of  his 

156 


IN  CONGRESS 

congressional  term.  Undoubtedly  he  could  have 
had  a  renomination  had  he  so  desired,  but  he  felt 
himself  pledged  not  to  seek  a  second  term.  "I 
can  say,  as  Mr.  Clay  said  of  the  annexation  of 
Texas,"  he  wrote,  "that  'personally  I  would  not 
object'  to  a  reelection,  although  I  thought  at  the 
time,  and  still  think,  it  would  be  quite  as  well  to 
return  to  the  law  at  the  end  of  a  single  term. 
...  If  it  should  happen  that  nobody  else  wishes 
to  be  elected,  I  could  not  refuse  the  people  the 
right  of  sending  me  again.  But  to  enter  myself 
as  a  competitor  of  others,  or  to  authorize  any  one 
so  to  enter  me,  is  what  my  word  and  honor  for- 
bid." 

Somebody  else  did,  however,  desire  to  be 
elected,  and  Lincoln  heartily  seconded  Judge 
Logan's  ambition.  But  Logan  did  not  possess 
his  ex-associate's  personal  charm,  and  only  a  man 
of  strong  personal  magnetism  could  have  won 
for  the  Whigs  in  that  year,  and  the  judge  was 
hopelessly  defeated. 

In  March,  1849,  Lincoln's  official  term 
expired,  and  then  for  the  first  and  only  time  in 
his  life  he  became  an  applicant  for  office.  The 
post  he  desired  was  the  commissionership  of  the 
General  Land  Office  in  Illinois,  but  Justin  But- 

157 


LINCOLN  THE  LAWYER 

terfield,  a  fellow-member  of  the  bar  from  Chi- 
cago was  appointed,  and  Lincoln  was  afterward 
offered,  and  fortunately  declined,  the  gover- 
norship of  Oregon,  returning  to  Spring- 
field and  the  practice  of  the  law,  num- 
bering among  the  clients  whom  he  had 
acquired  in  Washington  no  less  a  person 
than  Daniel  Webster,1  a  somewhat  authoritative 
recognition  of  Lincoln  as  a  lawyer. 

1Mr.  Ben:  Perley  Poore  is  authority  for  the  statement  that 
Webster  insisted  that  Lincoln  charged  him  too  little  for  his 
services,  and  that  he  always  felt  himself  in  his  counsel's  debt.  The 
matter  on  which  he  had  retained  him  involved  clearing  the  title 
to  certain  real  estate  in  an  embryo  city  (probably  Rock  Island 
City)  laid  out  where  Rock  River  empties  into  the  Mississippi. 


158 


XVI 

LIFE  ON  THE  ILLINOIS  CIRCUIT 

IT  has  been  repeatedly  asserted  that  Lin- 
coln's legal  reputation  was  entirely  local, 
and  that  he  was  unknown  as  a  lawyer 
beyond  his  immediate  neighborhood;  yet 
it  is  a  fact  that  he  had  no  sooner  an- 
nounced his  intention  to  resume  practice 
than  he  was  offered  a  partnership  by  Mr. 
Grant  Goodrich,  one  of  the  prominent  attorneys 
of  Chicago,  with  a  wide  and  lucrative  clientage. 
Lincoln  had  an  idea,  however,  that  he  was  threat- 
ened with  consumption,  and  fearing  that  city 
work  would  undermine  his  health,  he  declined 
the  proposal  and  returned  to  his  old  office  in 
Springfield. 

There  is  no  evidence,  except  his  own,  that 
Herndon  maintained  anything  more  than  a  nom- 
inal practice  after  he  was  left  to  his  own  devices ; 
but  nevertheless  Lincoln  offered  to  continue  the 

161 


LINCOLN  THE  LAWYER 

partnership  with  him  on  the  same  generous  terms 
which  had  governed  their  original  alliance,  and 
in  the  spring  of  1849  the  firm  of  Lincoln  & 
Herndon  again  started  in  business,  with  head- 
quarters in  a  little  three-story  building  on  the 
west  side  of  the  public  square  of  Springfield, 
about  where  the  Myers  Building  now  stands. 
The  office  was  neither  pretentious  nor  commodi- 
ous, but  it  met  the  requirements  of  the  times,  and 
its  equipment,  though  meager,  would  compare 
very  favorably  with  that  of  many  a  country  law 
office  of  the  present  day.  Lincoln  saw  but  little 
of  this  official  work-room,  however,  for  he  left 
all  matters  of  routine  and  local  business  to  Hern- 
don and  devoted  himself  to  circuit  work — the 
most  picturesque  practice  of  the  law  which  is 
recorded  in  the  legal  annals  of  this  country. 

Illinois  in  1849  was  divided  into  nine  judicial 
districts,  each  presided  over  by  a  judge  who 
traveled  from  one  county-seat  to  another  within 
his  jurisdiction,  hearing  civil  and  criminal 
cases  and  acting  as  an  appellate  tribunal 
for  minor  causes  decided  by  justices  of 
the  peace,  and  during  the  greater  part 
of  the  year  these  judges  were  continually  on 
their  rounds,  followed  by  the  members  of  the 

162 


LIFE  ON  THE  ILLINOIS  CIRCUIT 

local  bar.1     In  early  times  the  condition  of  the 
roads  forbade  the  use  of  wheels,  and  the  judge 


Drawn  by  Harry  Fenn 

Original  offices  (on  the  second  floor)  of 
Lincoln  &  Herndon — exterior 

made  his  trips  on  horseback,  accompanied  by  a 
cavalcade  of  lawyers  who  forded  the  streams  and 
defied  the  weather  in  the  interest  of  their  clients, 

'Prior  to  1818  the  circuit  judges  convened  twice  a  year  at 
Springfield  and  sat  as  a  court  of  appeal  (called  the  Supreme 
Court)  to  pass  on  judgments  of  the  circuit  courts  sent  them  for 

163 


LINCOLN  THE  LAWYER 

making-  light  of  many  hardships  in  their  zeal  for 
the  profession,  and  forming  a  gay  if  not  very 
learned  company,  warmly  welcomed  and  hon- 
ored in  every  county-seat. 

Before  his  election  to  Congress,  Lincoln  had 
been  one  of  the  equestrian  retinue  of  the  Hon. 
Samuel  Treat,  who  at  that  time  presided  over 
the  destinies  of  the  Eighth  Judicial  Circuit,  and 
the  big  leather  saddle-bags1  which  carried  the 
lawyer's  papers  and  belongings  are  in  existence 
to-day;  but  by  1849  wheels  could  be  used  with 
some  comfort  in  traveling,  and  when  Lincoln 
resumed  his  professional  duties  a  procession  of 
buggies  and  carry-alls  marked  the  progress  of  the 
court. 

It  was  an  open  and  sparsely  settled  country 
through  which  the  judge  and  lawyers  journeyed 
in  those  days,  a  country  almost  skirting  the  wil- 
derness from  which  it  had  been  only  recently 
reclaimed,  a  new,  free,  wind-swept,  and  in  many 

review,  each  judge  withdrawing,  of  course,  while  his  own  de- 
cisions were  under  consideration.  After  1848,  however,  three 
Supreme  Court  judges  were  apjaointed,  who  performed  no  circuit 
work,  and  the  sessions  of  the  court  were  held  not  only  at  Spring- 
field, but  also  at  Ottawa  and  Mount  Vernon. 

i  The  Hon.  Robert  Lincoln  told  the  writer  that  he  distinctly 
remembers  seeing  his  father  start  out  on  horseback,  with  his 
saddle-bags,  to  accompany  the  judge  on  the  circuit. 

164 


K?%  «£rs 


) 


Mr 


Hon.  Samuel  H.  Treat 
Judge  of  the  old  8th  Illinois  Circuit 


LIFE  ON  THE  ILLINOIS  CIRCUIT 

respects  beautiful  country,  rich  with  promise  and 
possibility.  Vast  stretches  of  wonderful  prairie- 
land  rolled  between  the  little  towns  which  served 
as  the  centers  of  government  for  the  respective 
counties,  and  so  great  were  the  distances  that  sev- 
eral days  were  sometimes  consumed  in  traveling 
from  point  to  point.  In  1849  the  Eighth  Circuit 
included  no  less  than  fourteen  counties, — Sanga- 
mon, Tazewell,  Woodford,  McLean,  Logan, 
DeWitt,  Piatt,  Champaign,  Vermilion,  Edgar, 
Shelby,  Moultrie,  Macon  and  Christian, — and 
its  dimensions  were  at  least  a  hundred  and  ten 
by  a  hundred  and  forty  miles.  To-day  there  are 
eighteen  judges  doing  duty  in  the  district  cov- 
ered by  one  justice  in  the  early  fifties,  and  it  is 
not  surprising  that  Lincoln's  attendance  on  the 
circuit  occupied  him  at  least  six  months  of  every 
year.  Not  many  lawyers  devoted  themselves  to 
the  work  as  closely  as  he  did.  Some  confined 
their  attention  to  a  few  counties,  others  traveled 
half  the  circuit,  and  others  even  further ;  but  Lin- 
coln was  the  only  member  of  the  bar  who,  year 
after  year,  accompanied  the  judge  through  the 
entire  district. 

The  custom  of  riding  the  circuit  was,  of  course, 
born  of  necessity,  for  in  the  early  days  there  was 

167 


LINCOLN  THE  LAWYER 

not  sufficient  legal  business  in  any  one  of  the 
small  communities  to  support  a  lawyer,  to  say 
nothing  of  a  law  firm.  People  who  wanted  to 
begin  lawsuits  usually  sought  their  advisers  in 
the  largest  town  in  their  vicinity,  or  waited  the 
arrival  of  the  circuit  judge  and  the  attend- 
ant bar,  when  they  could  look  over  the  field 
and  pick  out  the  most  available  champion.  Fre- 
quently, however,  the  local  attorneys  were  re- 
tained to  prepare  the  papers,  with  instructions  to 
select  a  suitable  man  for  the  court  work  when  the 
circuit-riding  bar  arrived  on  the  scene.  There 
was  therefore  an  excellent  chance  of  securing 
good  business  by  constant  attendance  on  the 
itinerant  court,  and  the  lawyer  who  visited  all 
the  counties  was  certain  to  be  more  widely  known 
than  any  of  his  fellow-practitioners.  At  the 
time  of  Lincoln's  second  partnership  with  Hern- 
don,  however,  such  work  was  more  a  matter  of 
choice  than  necessity.  Doubtless  the  firm  could 
have  made  a  satisfactory  income  had  the  senior 
partner  devoted  himself  to  the  courts  nearest  his 
home  and  maintained  a  branch  office  in  the  dis- 
tant counties,  as  other  lawyers  did;  but  he  liked 
the  freedom  of  the  road,  and  the  happiest  days 
of  his  life  were  those  he  passed  on  these  long 
legal  tours. 

168 


Map  of  Illinois 

The  shaded  portion  indicates  the  circuit  of  Lincoln's  law  practice 

The  Eighth  Circuit,  as  organized  under  the  provisions  of  the  Illinois  Session  Laws  of  1847,  page 
31,  is  shown  by  the  shaded  area  on  the  above  map.  Later  (in  1853)  it  was  reduced  to  Sangamon, 
Logan,  McLean,  Woodford,  Tazewell,  DeWitt,  Champaign,  and  Vermilion  counties  (Illinois 
Session  Laws,  1853,  page  63);  and  in  1857  it  was  further  reduced  to  DeWitt,  Logan,  McLean, 
Champaign,  and  Vermilion  counties  (Illinois  Session  Laws,  1857,  page  12).  Even  after  Sangamon 
county  was  transferred  to  another  circuit,  Lincoln  still  continued  to  travel  the  Eighth, 


LINCOLN  THE  LAWYER 

Traveling  the  circuit  was  comparatively  com- 
fortable in  the  fifties,  but  it  still  lacked  some- 
thing of  the  luxurious,  and  at  times  it  involved 
hardships  which  could  be  surmounted  onry  by  the 
best  of  health  and  spirits. 

The  judge  and  his  flock  usually  started  out 
from  the  State  capital  as  soon  as  the  roads 
admitted  of  travel  in  the  early  spring,  and  drove 
to  the  nearest  county-seat  on  their  route.  At 
times  his  Honor  traveled  alone,  but  frequently 
some  member  of  the  bar  occupied  a  seat  in  his 
carriage,  and  the  other  lawyers  made  their  way 
to  the  rendezvous  as  best  they  could,  three  or 
more  often  clubbing  together  and  hiring  a  con- 
veyance for  the  trip.  Lincoln  sometimes  trav- 
eled with  these  small  parties,  but  after  the  first 
year  or  so  he  maintained  a  horse  and  buggy  of 
his  own,  both  of  which  were  pretty  "wobbly" 
according  to  Judge  Weldon,  with  whom  they 
were  left  when  their  owner  took  to  the  iron  steed. 

But  Illinois  railroads  connected  only  the  cen- 
ters of  population  in  the  early  fifties,  and  the 
county-seats  on  the  Eighth  Circuit  were  not 
much  more  than  villages.  Each  bore  a  family 
resemblance  to  the  other,  and  all  were  strongly 
suggestive  of  the  tyjrical  New  England  hamlet. 

170 


LIFE  ON  THE  ILLINOIS  CIRCUIT 


The  settlement  almost  invariably  clustered 
around  a  public  square  of  generous  dimensions, 
in  the  center  of  which  stood  the  court-house,  a 


A 

.7:    ■'  i 

i 


• 


— HhSSi 


■>-V;z~^PH^  -4' 


Drawn  by  Harry  I-enn  from  a  photograph 

Old  court-house  at  Metaruora,  Woodford  County,  Illinois 
Lincoln  practised  in  this  building,  which  is  now  used  as  a  town  hall 

substantial  building  of  brick  or  stone.  The 
square  itself  was  guarded  from  the  highroad  by 
a  series  of  wooden  hitching-rails,  and  teams  of  all 
sorts  nosed  this  fence  from  the  opening  to  the 
closing  of  the  term;  for  business  and  pleasure 
both  demand  the  attendance  of  the  whole  county 

171 


LINCOLN  THE  LAWYER 

on  court-days,  and  shelter  for  the  horses  and 
wagons  was  frequently  unobtainable.  Even  the 
lawyers  had  difficulty  in  finding  accomodations 
for  their  animals ;  and  as  the  supply  of  labor  was 
extremely  limited,  those  who  traveled  in  private 
rigs  often  had  to  be  their  own  hostlers. 

The  stable  facilities,  however,  were  not  infre- 
quently superior  to  those  of  the  hotels.  Some- 
times the  tiny  taverns  which  attempted  to  house 
the  visitors  boasted  only  one  habitable  room,  and 
as  this  was  invariably  reserved  for  the  judge, 
the  lawyers  not  included  in  his  hospitality  had  to 
sleep  anywhere  they  could — on  the  sofas,  the 
tables,  the  window-seats,  the  floor,  and  even  in 
the  lofts  and  horse-stalls.  It  was  no  uncommon 
thing  for  his  Honor  to  invite  three  or  four  men 
to  occupy  his  room,  but  the  one  who  was  selected 
to  share  Judge  Davis's  bed  might  about  as  well 
have  slept  on  the  floor,  for  that  jurist  was  al- 
most as  wide  as  the  ordinary  four-poster.  Lin- 
coln and  he  made  a  fair  average  as  far  as  width 
was  concerned,  but  as  the  former  was  six  feet 
four  and  had  to  lie  crosswise  to  fit  in  the  average 
bed,  their  combination  was  not  a  pronounced 
success. 

In  the  dining-room  the  tavern-keeper  usually 

172 


LIFE  ON  THE  ILLINOIS  CIRCUIT 

reserved  one  end  of  the  long  table  for  the  bar, 
and  the  judge  was  always  expected  to  preside  at 
the  head  of  the  board;  but  the  function  was  fre- 
quently   a    Barmecide    feast,    and,    as    Lincoln 


Drawn  by  Harry  Fenn  from  a  contemporary  print 

Original  offices  of  Lincoln  &  Herndon — interior 

remarked,  there  was  very  little  advantage  in  sit- 
ting at  the  head  of  the  table  unless  the  food 
improved  as  you  moved  up.  Except  for  this  dis- 
tinction as  to  place,  there  was  no  difference  made 
between  the  legal  fraternity  and  the  other  guests 
of  the  hotel,  and  litigants,  witnesses,  jurors,  and 
prisoners  out  on  bail  were  accommodated  at  the 

173 


LINCOLN  THE  LAWYER 

same  table  and  enjoyed  the  same  fare.  Indeed, 
Mr.  Whitney  recalls  several  persons  actually  on 
trial  who  not  only  took  their  meals  with  his 
Honor  and  the  bar,  but  also  spent  their  evenings 
in  the  judge's  room,  without  the  slightest  embar- 
rassment to  any  one. 

The  inconvenience  and  discomforts  of  the  life 
were  at  times  almost  unbearable,  but  Lincoln 
was  never  known  to  join  in  the  frequent  protests 
and  complaints  of  his  associates.  Indeed,  his 
sense  of  humor  often  saved  the  situation  and 
made  it  tolerable,  if  not  enjoyable,  for  himself 
and  others.  He  saw  the  comic  side  of  all  that 
irritated  men  of  more  nervous  temperament,  and 
disposed  of  annoyances  with  a  laugh  so  hearty 
and  infectious  that  even  the  disgruntled  victims 
of  petty  misfortunes  had  to  join  in  his  mirth.  In 
an  indolent,  easy  manner  he  studied  the  various 
types  of  human  nature  encountered  on  the  road, 
took  a  direct  personal  interest  in  the  people  he 
met,  and  made  friends  at  every  stopping-place. 
All  the  court  clerks  and  county  officials  were 
glad  to  see  him  come  and  sorry  to  have  him 
depart;  he  had  a  warm  welcome  at  every  tavern 
door  and  all  sorts  and  conditions  of  men  claimed 
his  close  acquaintance.    But,  despite  this  general 

174 


LIFE  ON  THE  ILLINOIS  CIRCUIT 

popularity,  Lincoln  was  not,  as  he  has  frequently 
been  depicted,  an  irresponsible  hail-fellow-well- 
met,  familiarly  known  as  "Abe,"  who  went 
about  slapping  people  on  the  back  and  encourag- 
ing similar  salutations.  Nothing  could  be  fur- 
ther from  the  truth  than  this.  Judge  Weldon 
informed  the  writer  that  in  all  his  acquaintance 
with  Lincoln  on  the  circuit,  the  only  person  he 
ever  heard  address  him  by  his  first  name  was  a 
street  urchin  whose  impertinence  astonished  the 
future  President  quite  as  much  as  it  amused  him, 
and  there  is  no  reason  to  believe  that  he  courted 
such  familiarities  after  he  reached  maturity.  Cer- 
tainly his  correspondence  shows  that  he  almost 
invariably  addressed  people  by  their  last  names 
— even  his  most  intimate  friends  like  Speed  and 
Davis;  and  although  Herndon  relates  anecdotes 
in  which  he  figures  as  "Billie,"  Lincoln's  letters 
refer  to  him  as  Herndon  or  William,  although 
he  was  a  much  younger  man  than  his  partner 
and  something  of  a  protege. 

This  is  not  at  all  suggestive  of  the  arm- 
around-the-neck  familiarity  with  which  Lincoln 
is  credited,  and,  as  a  matter  of  fact,  he  admitted 
very  few  friends  to  his  confidence,  and  his  inti- 
mates never  numbered  more  than  two  or  three. 

175 


LINCOLN  THE  LAWYER 

He  was  undoubtedly  easy-going,  pleasant- 
spoken,  cordial,  unconventional,  and  entirely  ap- 
proachable, but  he  had  his  own  distinctive  barrier 
of  dignity  which  no  one  ever  surmounted. 

It  is  easy  to  understand  the  fascination  of  the 
circuit  life.  The  members  of  the  bar  formed  a 
bright,  congenial  company  who  strove  mightily 
with  each  other  in  the  court-rooms,  but  ate  and 
drank  as  friends.  They  were  persons  of  credit 
and  renown  in  the  eyes  of  all  the  assembled  coun- 
try-side, oracles  to  the  political  gossips,  and 
leaders  of  public  opinion  whose  words  were  often 
law.  Every  man  knew  every  other  man,  and  the 
close,  daily  contact  in  the  court-rooms  and  on  the 
road  created  a  spirit  of  comradeship  which  no 
mere  professional  interest  could  supply.  There 
was  little  of  dull  routine  in  the  life,  less  of  cold 
formality,  nothing  of  the  anxieties  and  cares 
which  characterize  modern  practice,  and  the 
"play-instinct,"  which  few  men  ever  entirely  out- 
grow, was  strongly  in  evidence  at  every  term  of 
court.  One  group  of  the  merry  company  founded 
a  mock  tribunal  which  formulated  all  sorts  of 
ridiculous  charges  against  their  fellow-prac- 
titioners and  tried  the  offenders  with  burlesque 
pomp  and  severity,  to  the  delight  of  all  beholders. 

176 


LIFE  ON  THE  ILLINOIS  CIRCUIT 

Others  were  good  at  song  and  story,  and  many  of 
the  evenings  passed  in  the  judge's  private  room 
were  all-night  sessions  of  mirth  and  good-fellow- 
ship which  made  for  lasting  friendship  and  an 
esprit  de  corps  destined  to  have  a  marked  effect 
upon  more  than  one  career.  The  whole  atmosphere 
of  the  profession  favored  individuality,  self-ex- 
pression, and  development,  and  Lincoln  re- 
sponded to  all  these  encouraging  influences.  He 
was  distinctly  a  human  product,  and  his  growth 
of  mind  and  character  was  most  happily  fostered 
by  the  free  life  of  the  circuit,  where  he  was  in 
close  touch  with  a  vigorous,  independent,  unarti- 
ficial  people  drawn  from  every  part  and  class  of 
the  country  and  all  representatively  American. 
Theirs  was  the  force  which  really  molded  the 
man  at  the  formative  period  of  his  career,  and 
the  most  important  individual  influence  on  his 
future  may  be  fairly  ascribed  to  the  judge  before 
whom  he  practised  and  with  whom  he  virtually 
lived  for  ten  successive  years. 


177 


XVII 

JUDGE  DAVIS  AND  LINCOLN 

JUDGE  DAVID  DAVIS  was  a  lawyer  of 
marked  ability  and  strong  individuality, 
a  shrewd  business  man,  a  loyal  friend,  a  violent 
partizan  of  generous  impulses  and  deep-rooted 
prejudices,  an  arbitrary  and  even  despotic  ruler 
of  his  own  domain,  but  a  fearless  administrator 
of  the  law  and  an  absolutely  honest  and  capable 
judge.  He  and  Lincoln  had  met  as  lawyers  in 
Springfield,  but  there  does  not  appear  to  have 
been  any  intimacy  between  them  until  Lincoln 
resumed  practice  at  the  close  of  his  congressional 
term,  when  their  acquaintance  speedily  devel- 
oped into  a  friendship  of  enduring  quality  and 
historic  importance. 

The  relations  of  the  bench  and  bar  were  neces- 
sarily much  closer  in  the  early  fifties  than  they 
are  to-day,  and  the  lawyers  of  the  Eighth  Cir- 
cuit  were    practically   a   big    family   of   which 

178 


Hon.  David  Davis 


Judge  of  old  8th  Illinois  Circuit.     Later  an  Associate  Justice  of  the  Supreme  Court 
of  the  United  States 


JUDGE  DAVIS  AND  LINCOLN 

Davis  was  the  official  head,  and  over  which  he 
exerted  a  really  parental  influence.  Not  only 
did  his  Honor's  ample  girth  and  other  physical 
proportions  suggest  a  paterfamilias,  but  his 
mental  attitude  toward  the  bar  was  at  once  dom- 
ineering and  fatherly,  with  the  domineering  ele- 
ment always  prominent.  "He  used  to  remind 
me  of  a  big  schoolmaster  with  a  lot  of  little  boys 
at  his  heels  whenever  I  saw  him  stumping  toward 
the  court-house,"  remarks  a  now  distinguished 
lawyer,  and  it  cannot  be  denied  that  there  was 
a  good  deal  of  the  pedagogue  about  the  judge. 
Certainly  he  knew  how  to  maintain  order  in  his 
court,  but  there  was  always  more  tact  than  sever- 
ity in  his  enforcement  of  discipline.  "Mr.  Sher- 
iff, you  will  see  that  nobody  except  General  Lin- 
der  is  allowed  to  smoke  in  my  court,"  was  his 
method  of  administering  a  rebuke  to  the  Attor- 
ney-General of  Illinois,  and  hints  of  this  kind 
seldom  went  astray.  But  though  he  insisted 
upon  maintaining  the  dignity  of  his  office  upon 
every  proper  occasion,  he  dispensed  with  all 
unnecessary  etiquelie,  and  outside  the  court- 
room he  was  democratic  to  the  last  degree. 

Almost  every  man,  woman,  and  child  in  the 
fourteen   counties    of   his    circuit   knew   Judge 

181 


LINCOLN  THE  LAWYER 

Davis,  and  he  undoubtedly  was  personally 
acquainted  with  a  greater  number  of  the  resi- 
dents than  any  other  one  man  in  the  district.  It 
naturally  followed  that  he  knew  the  jurors  who 
were  selected  by  the  sheriff,  and  in  some  counties 
the  same  men  composed  the  jury  term  after 
term.  They  were  his  friends,  but  the  idea  that 
they  would  be  subservient  to  his  wishes  on  this 
account,  or  that  he  would  attempt  to  take  advan- 
tage of  their  friendship  to  impose  his  author- 
ity upon  them,  never,  apparently,  entered  any 
one's  head.  On  the  contrary,  he  relied  on  the 
intelligence,  fairness,  and  integrity  of  the  tales- 
men to  a  far  greater  extent  than  is  practical  in 
modern  courts;  but  if  there  was  the  slightest 
cause  for  suspecting  that  a  litigant  would  not 
receive  an  impartial  verdict  at  their  hands,  he 
promptly  removed  the  case  into  another  circuit, 
and  he  governed  himself  by  the  same  strict  rules 
which  he  applied  to  the  juries.  In  the  minutes 
of  the  court  in  Tazewell  County  the  writer  dis- 
covered a  significant  entry,  evidently  in  Davis's 
handwriting,  written  opposite  the  case  of  Hall 
v.  Woodward,  reading  somewhat  as  follows: 
"Jury  disagreed.  Venue  changed  on  account  of 
the  prejudice  of  the  judge." 

182 


JUDGE  DAVIS  AND  LINCOLN 

But  though  he  was  impartial  in  all  his  official 
duties,  his  Honor  was  a  man  of  strong  likes  and 
dislikes,  and  he  took  no  pains  to  conceal  his  feel- 
ings toward  the  different  members  of  the  bar. 
Lincoln,  Leonard  Swett,  Judge  Logan,  and  a 
few  others  continually  basked  in  the  sunshine  of 
his  approval;  but  Lincoln  was  the  prime  favorite 
of  the  privileged  clique  which  made  the  judge's 
room  its  headquarters,  and  almost  from  the  first 
he  was  distinguished  at  every  possible  oppor- 
tunity in  a  way  which  would  have  been  fatal 
to  the  average  man.  More  than  one  of  the 
judge's  coterie  has  testified  that  his  Honor 
would  brook  no  interruption  of  the  conversation 
when  Lincoln  had  the  floor;  and  if  his  favorite 
happened  to  be  absent,  he  took  but  little  interest 
or  enjoyment  in  the  rest  of  the  company  which 
gathered  at  his  rooms.  "Where  's  Lincoln?" 
he  would  inquire  irritably.  "Here,  somebody,  go 
and  tell  Lincoln  to  come  here." 

Under  such  circumstances  it  is  nothing  short 
of  remarkable  that  the  man  was  not  loathed 
instead  of  loved  by  the  rank  and  file  of  the  pro- 
fession. He  was  naturally  unassuming,  but 
until  he  came  into  contact  with  Judge 
Davis  he  had  never  been  placed  in  a  position 
11  183 


LINCOLN  THE  LAWYER 

of  much  power.  Davis,  however,  recognized 
the  masterly  quality  of  his  mind,  and  his  views 
and  arguments  soon  began  to  have  more  weight 
and  influence  with  the  court  than  those  of  any 
other  member  of  the  bar.  His  Honor  had  too 
much  individuality  and  independence  actually  to 
defer  to  any  one  else's  opinion,  but  his  favorite 
always  had  the  ear  of  the  court,  and  this  in  itself 
gave  him  a  commandingly  important  position. 

"It  is  easy  for  the  weak  to  be  gentle,"  writes 
a  distinguished  student  of  human  nature.  "Most 
people  can  bear  adversity.  But  if  you  wish  to 
know  what  a  man  really  is,  give  him  power. 
That  is  the  supreme  test." 

No  one  but  an  experienced  lawyer  can  appre- 
ciate the  immense  power  wielded  by  the  advocate 
on  whom  the  bench  relies.  The  mere  fact  that 
he  has  the  private  ear  of  the  court  is,  in  itself,  a 
temptation  which  has  proved  too  much  for  more 
than  one  distinguished  member  of  the  bar;  and 
though  the  judge  be  never  so  honest  and  impar- 
tial, there  are  countless  forms  in  which  the  per- 
sonal equation  may  be  invoked.  The  average 
practitioner  who  occupies  this  post  of  vantage 
seldom  makes  any  effort  to  guard  himself 
against  a  misuse  of  his  opportunities.     He  does 

184 


JUDGE  DAVIS  AND  LINCOLN 

not  hesitate  to  arrogate  to  himself  small  licenses 
which  he  knows  will  not  be  denied ;  he  crowds  and 
overbears  adversaries  less  fortunately  situated, 
and  generally  asserts  himself  at  their  expense. 
Every  court-room  in  the  world  harbors  these  privi- 
leged bullies.    Not  all  of  them,  of  course,  make 
a  brutal  display  of  their  powers.     Many   are 
extremely  subtle  in  bringing  the  necessary  pres- 
sure to  bear,  and  some  are  mentally  so  consti- 
tuted that  they  are  not  conscious  of  exerting  any 
offensive  influence  against  their  fellow-practi- 
tioners.    But  in  ninety-nine  cases  out  of  a  hun- 
dred the  leaders  of  the  bar  yield  to  temptations 
which  Lincoln  resisted,  and  few  have  ever  been 
tested  as  he  was.     Yet  he  worked  in  an  atmos- 
phere of  this  sort  for  ten  years,  schooling  him- 
self against  the  open  favor  of  the  court;  and  of 
such  training  and  temptations  there  came  to  the 
nation's  guidance  a  master  of  infinite  tact. 

Not  only  did  he  refrain  from  imposing  him- 
self upon  his  contemporaries,  but  younger  mem- 
bers of  the  profession  received  every  possible 
consideration  at  his  hands.  It  is  the  universal 
testimony  of  those  who  met  him  in  daily  practice 
that  he  never  wantonly  sought  to  exalt  himself  at 
the  expense  of  a  fellow-practitioner,  and  his  ju- 

185 


LINCOLN  THE  LAWYER 

niors  constantly  retained  him  to  aid  them  in  cases, 
without  the  slightest  fear  that  he  would  attempt 
to  overshadow  them,  take  the  credit  for  vic- 
tory, or  shelve  responsibility  for  a  defeat. 

"The  first  case  I  ever  had  in  Tazewell  County 
was  the  People  v.  Gideon  Hawley,"  remarked 
Mr.  James  Haines1  while  talking  with  the  writer. 
"There  were  thirty-two  indictments  against  my 
client  for  obstructing  a  public  road,  and  as  the 
authorities  were  inclined  to  make  an  example,  the 
case  was  somewhat  serious.  I  retained  Mr.  Lin- 
coln to  conduct  the  defense,  and  after  we  had 
completed  our  preparations  he  said,  'Of  course 
you  will  make  the  opening  speech.'  I  was  sur- 
prised, for  I  had  supposed  that  he  would  want  to 
assume  full  control,  and  I  said  as  much,  adding 
that  I  would  prefer  him  to  take  the  lead.  'No,' 
he  answered;  and  then  laying  a  hand  on  my 
shoulder,  he  continued:  'I  want  you  to  open  the 
case,  and  when  you  are  doing  it  talk  to  the  jury 
as  though  your  client's  fate  depends  on  every 
word  you  utter.  Forget  that  you  have  any  one 
to  fall  back  upon,  and  you  will  do  justice  to 
yourself  and  your  client.'    I  have  never  forgot- 

i  Mr.  Haines  Is  now  living  in  Pekin,  Tazewell  County,  and  the 
court-house,  which  is  still  standing  in  that  county,  and  in  which 
Mr.  Lincoln  practised,  was  erected  under  his  supervision. 

186 


JUDGE  DAVIS  AND  LINCOLN 

ten  the  kind,  gentle,  and  tactful  manner  in  which 
he  spoke  those  words,"  Mr.  Haines  continued; 
"and  that  is  a  fair  sample  of  the  way  he  treated 
younger  members  of  the  bar." 


Court-room,  Tazewell  Co.,  Illinois, 
in   which  Lincoln  practised  and 
/  /       which  is  still   used    for   sessions 
of  the  circuit  court 

This,  with  other  testimony  of  a  similar  nature, 
shows  the  man  in  the  making;  and  no  one  who 
is  familiar  with  Lincoln's  subsequent  conduct  as 
Commander-in-chief  of  the  army  can  fail  to 
recognize  the  bearing  of  his  professional  training 
upon  his  official  actions.  Again  and  again  he 
assumed  all  responsibility  for  the  blunders  of  his 

187 


LINCOLN  THE  LAWYER 

generals,  and  it  will  be  remembered  that  when 
Grant  succeeded  he  instantly  wrote  him,  not  only 
disclaiming  any  share  of  the  credit,  but  acknowl- 
edging that  the  executive  had  doubted  the  wis- 
dom of  his  plans. 

Judge  Davis's  confidence  in  Lincoln's  ability 
was  evidenced  at  all  times,  but  it  often  took  a 
form  which  must  appear  nothing  less  than  amaz- 
ing to  the  modern  practitioner,  for  he  frequently 
assigned  Lincoln  to  the  bench  and  left  him  to 
conduct  the  court  in  his  absence.  There  has  been 
considerable  doubt  expressed  by  some  biographers 
as  to  whether  or  no  Lincoln  did  actually  preside  in 
a  judiciary  capacity,  but  there  is  not  the  slightest 
question  about  the  matter.  Judge  Weldon 
informed  the  writer  that  he  personally  tried  a 
jury  case  with  Lincoln  on  the  bench,  and  Mr. 
Whitney  asserts  that  the  future  President  once 
conducted  an  entire  term  of  court  in  Champaign 
County.  Moreover,  there  is  in  existence  to-day 
a  judgment  in  Lincoln's  handwriting  which  was 
written  by  him  in  a  case  in  which  he  presided  as 
the  trial  judge.  This  practice  was,  of  course, 
irregular,  and  it  is  said  that  two  cases  were 
reversed  by  the  Supreme  Court  because  of  it; 
but  Judge  Weldon   told  the  writer  that  Lincoln 

188 


JUDGE  DAVIS  AND  LINCOLN 

never  presided  at  a  trial  unless  the  attorneys  for 
both  parties  consented,  and  that  they  were  gen- 
erally glad  to  do  so,  for  in  this  way  delays  were 


Drawn  by  Harry  Fenn  from  a  photograph 

Old  court-house  at  Pekin,  Tazewell  County,  Illinois 

Lincoln  practised  in  this  building  which  is  well  preserved 
and  the  sessions  of  the  Circuit  Court  are  still  held  in  it 

avoided  and  the  clients  and  witnesses  accommo- 
dated when  Davis  was  unable  to  hold  court. 

The  unofficial  character  of  the  position,  how- 
ever, made  great  demands  upon  Lincoln's  tact, 

and  he  had  to  display  rare  judgment  in  exercis- 

189 


LINCOLN  THE  LAWYER 

ing  his  authority.  On  one  such  occasion  some 
young  attorneys  attempted  to  embarrass  him 
with  technical  devices  in  a  case  in  which  there  was 
no  real  defense.  Lincoln  heard  them  with  the 
utmost  good-nature  and  patience,  and  finally, 
when  they  had  kept  up  their  tactics  for  a  whole 
day,  he  gave  a  decision  in  favor  of  the  plaintiff, 
and  wrote  the  direction  for  judgment  in  such 
form  that  there  was  no  possible  chance  for  an 
appeal.  "But  how  are  we  to  get  this  up  to  the 
Supreme  Court?"  asked  one  of  the  attorneys 
when  he  found  himself  cornered.  "Well,  you  've 
all  been  so  smart  about  this  case,"  answered  Lin- 
coln, calmly,  "that  you  can  find  out  for  your- 
selves how  to  carry  it  up";  and  that  ended  the 
matter. 

Lincoln's  earnestness  and  sense  of  responsi- 
bility deepened  as  he  found  himself  relied  upon 
as  a  leader  of  the  bar;  and  as  the  years  went  by 
he  grew  more  and  more  grave,  meditative,  and 
given  to  mental  abstraction. 

"He  would  frequently  lapse  into  reverie  and 
remain  lost  in  thought  long  after  the  rest  of  us 
had  retired  for  the  night,"  Judge  Weldon  told 
the  writer;  "and  more  than  once  I  remember 
waking  up  early  in  the  morning  to  find  him  sit- 

190 


JUDGE  DAVIS  AND  LINCOLN 

ting  before  the  fire,  his  mind  apparently  concen- 
trated on  some  subject,  and  with  the  saddest  ex- 
pression I  have  ever  seen  in  a  human  being's  eyes." 


From  the  collection  of  Major  William  H.  Lambert 

Facsimile  of  a  judgment  written  by  Mr.  Lincoln  while  acting 
in  the  place  of  Judge  Davis 

No  one  knows  with  what  thoughts  Lincoln 
was  struggling  in  those  hours,  but  this  side  of 
his  character  has  almost  disappeared  under  the 
mass  of  silly  stories  which  are  coupled  with  his 
name.  One  would  think,  to  read  some  of  the  bio- 
graphies, that  he  never  had  a  serious  moment, 

191 


LINCOLN  THE  LAWYER 

and  that  most  of  his  life  on  the  circuit  was  spent 
in  retailing  dubious  stories  to  gaping  circles  of 
country-folk  at  wayside  taverns.  Indeed,  one 
chronicler  states  that  he  was  frequently  pitted 
against  the  local  champion  raconteurs  in  story- 
telling tournaments  which  continued  for  days, 
but  which  never  could  have  lasted  long  enough 
to  furnish  all  the  pointless  jests  which  seek  to 
illustrate  his  fame  as  a  fun-maker. 

Lincoln  was  a  wit,  and,  as  Ingersoll  said,  he 
used  any  word  "which  wit  could  disinfect,"  but 
his  reputation  has  suffered  at  the  hands  of  writ- 
ers who  have  employed  stories  as  stop-gaps  in 
their  information.  Of  course,  it  is  far  easier  and 
more  amusing  to  attribute  a  lively  story  to  Lin- 
coln than  to  give  a  true  picture  of  the  man;  but 
the  compilations  which  have  been  evolved  on  this 
principle,  and  which  picture  his  life  on  the  cir- 
cuit as  a  round  of  story-telling,  are  made  out  of 
whole  cloth — some  of  which  is  stolen  goods. 

"Nothing  can  be  more  absurd  than  to  picture 
Lincoln  as  a  combination  of  buffoon  and  drum- 
mer," protested  one  of  his  surviving  contem- 
poraries while  discussing  this  subject  with  the 
writer.  "He  was  frequently  the  life  of  our  little 
company,  keeping  us  good-natured,  making  us 

192 


JUDGE  DAVIS  AND  LINCOLN 

see  the  funny  side  of  things,  and  generally  enter- 
taining us;  but  to  create  the  impression  that  the 
circuit  was  a  circus  of  which  Lincoln  was  the 
clown  is  ridiculous.  He  was  a  lawyer  engaged 
in  serious  and  dignified  work,  and  a  man  who  felt 
his  responsibility  keenly." 

Probably  there  is  no  one  living  who  is  better 
entitled  to  speak  on  this  subject  than  Mr.  James 
Ewing,  a  member  of  the  Illinois  bar,  whose 
father  kept  the  old  National  Hotel  in  Blooming- 
ton,  where  all  the  lawyers  used  to  stop  while  on 
the  circuit,  and  at  whose  house  Lincoln  boarded 
after  the  hotel  was  closed.  Mr.  Ewing  was 
about  nine  years  old  when  Lincoln  first  stayed 
at  the  National,  and  for  six  or  seven  years  after- 
ward he  saw  and  heard  him  in  the  company  of 
his  associates  almost  every  term  of  court.  "In 
all  my  experience,"  Mr.  Ewing  informed  the 
writer,  "I  never  heard  Mr.  Lincoln  tell  a  story 
for  its  own  sake  or  simply  to  raise  a  laugh.  He 
used  stories  to  illustrate  a  point,  but  the  idea  that 
he  sat  around  and  matched  yarns  like  a  commer- 
cial traveler  is  utterly  false.  I  never  knew  him  to 
do  such  a  thing,  and  I  had  ample  opportunity 
for  noting  him." 

"Lincoln  would  soon  have  become  a  bore  if  he 

193 


LINCOLN  THE  LAWYER 

had  traded  on  his  story-telling  gifts,"  remarked 
another  authority.  "He  traveled  with  the  same 
men  day  after  day,  week  after  week,  and  month 
after  month.  Even  if  his  fund  of  anecdotes 
could  have  stood  the  strain,  we  should  not  have 
been  able  to  endure  it,  for  no  man  exhausts  him- 
self or  others  so  quickly  as  your  professional 
funny  man." 

But  those  who  have  depicted  Lincoln  on  the 
circuit  as  a  sort  of  end-man  with  an  itinerant 
minstrel  show,  have  also  done  a  similar  injustice 
to  Davis.  More  than  one  scissors-and-paste-pot 
biographer  encourages  the  inference  that  it 
was  Davis's  partiality  for  broad  stories  which 
caused  him  to  distinguish  Lincoln,  and  we 
are  expected  to  believe  that  this  was  the 
edifying  origin  of  the  friendship  of  these 
two  distinguished  men.1  Undoubtedly  Davis 
enjoyed  a  good  story,  and  it  may  well 
be  conceded  that  his  laugh  was  as  loud  and  infect- 
ious as  tradition  says  it  was;  but  to  suppose  that 

i  Judge  Davis,  who  was  three  times  elected  to  the  Illinois  Cir- 
cuit Bench  (1848,  1855,  and  18G1),  was  appointed  an  associate 
justice  of  the  Supreme  Court  of  the  United  States  in  1862,  and 
served  on  that  bench  with  distinction  until  1877,  when  he  resigned 
to  become  a  United  States  senator  from  Illinois.  He  became 
acting  vice-president  in  1881,  and  resigned  in  1883.  He  died  at 
Bloomington,  Illinois,  June  26,  1886. 

194 


JUDGE  DAVIS  AND  LINCOLN 

a  man  of  his  ability  would  select  a  mere  jester 
for  a  friend,  or  that  Lincoln  would  have  con- 
sented to  serve  as  a  court  fool,  is  preposterous. 

Davis  had  precisely  the  mental  qualities  which 
were  best  adapted  to  encourage  and  develop  a 
man  of  Lincoln's  temperament.  He  recognized 
his  great  ability,  admired  his  modesty,  respected 
his  integrity,  esteemed  his  judgment,  and  helped 
to  school  his  legal  aptitude.  He  knew  the  power 
of  the  man — knew  it  through  ten  years'  associa- 
tion with  him  in  the  court-room;  and  it  was  this 
knowledge,  gained  in  this  way,  which  formu- 
lated his  unconquerable  belief  in  the  Illinois  can- 
didate for  the  Presidential  nomination.  It  was 
Judge  Davis  and  a  handful  of  men  who  had 
learned  to  know  and  appreciate  Lincoln  as  a 
lawyer— a  small  group  of  his  fellow -practi- 
tioners on  the  Eighth  Circuit:  Davis,  the  judge; 
Swett,  the  advocate;  and  Logan,  the  leader  of 
the  bar,  but  especially  Davis— who  forced  Lin- 
coln upon  the  Chicago  Convention  in  1860,  and 
thus  gave  him  to  the  nation. 


195 


XVIII 


LEADER  OF  THE  BAR 


LINCOLN  did  not  return  to  any  assured 
clientage  at  the  close  of  his  congressional 
term,  and  he  had  his  professional  reputation  still 
to  make  when  he  began  to  follow  Judge  Davis 
over  the  circuit.  He  had  had  a  fairly  wide 
acquaintance  in  the  community  before  he  went  to 
Washington,  but  the  State  was  rapidly  increasing 
in  population,  and  to  the  newcomers  he  was,  of 
course,  an  utter  stranger.  Even  to  the  majority 
of  the  old  inhabitants,  he  was  better  known  as  a 
stump-speaker  and  politician  than  as  a  lawyer; 
and,  recognizing  this,  he  set  to  work  with  a  single- 
ness of  purpose  which  had  not  previously  charac- 
terized his  interest  in  the  law.  We  have  his  own 
word  for  it  that  he  had  then  definitely  deter- 
mined to  abandon  public  life,  and  his  most  inti- 
mate professional  associates  testify  to  a  marked 
change  in  his  attitude  toward  his  work  from  this 
time  on.    Thenceforward  he  bent  all  his  energies 

196 


LEADER  OF  THE  BAR 

upon  equipping  himself  for  his  legal  duties,  pre- 
paring his  cases  with  greater  care,  fortifying 
himself  with  reading,  and  generally  becoming 
more  systematic  in  his  studies.  It  was  probably 
at  this  time  that  he  began  entering  notes  of  cases 
and  authorities  in  a  memorandum-book  which  he 
carried  with  him  on  the  circuit,  and  which  pro- 
vided him  with  a  ready  reference  at  moments 
when  it  was  not  possible  to  procure  law  reports 
or  text-books.1  His  preparation,  however,  did 
not  stop  at  legal  learning.  He  began  the  study  of 
the  German  language,  and  was  interested  in  any- 
thing which  could  develop  his  mind,  and  he  did 
not  abandon  any  subject  once  he  touched  upon  it. 
"In  the  course  of  my  reading,"  he  told  a  friend 
years  afterward,  "I  constantly  came  across  the 
word  'demonstrate.'  I  thought  at  first  that  I 
understood  its  meaning,  but  soon  became  satis- 
fied that  I  did  not.  I  consulted  Webster's  dic- 
tionary. That  told  me  of  certain  proof  beyond 
the  probability  of  doubt,  but  I  could  form  no 
idea  of  what  sort  of  proof  that  was.  I  consulted 
all  the  books  of  reference  I  could  find,  but  with 


i  This  memorandum-book  is  now  in  the  possession  of  Mr.  Jesse 
W.  Weik,  through  whose  courtesy  the  writer  was  allowed  to  ex- 
amine its  copious  citations  and  notes. 

197 


LINCOLN  THE  LAWYER 

no  better  results.  You  might  as  well  have 
defined  blue  to  a  blind  man.  At  last  I  said  to 
myself,  'Lincoln,  you  can  never  make  a  lawyer 
if  you  do  not  know  what  "demonstrate"  means,' 
and  so  I  worked  until  I  could  give  any  proposi- 
tion of  the  six  books  of  Euclid  at  sight.  I  then 
found  out  what  'demonstrate'  meant." 

This  study  was  performed  at  odd  intervals 
while  he  was  engaged  in  trial  work  on  the  circuit, 
and  Herndon  reports  that  he  frequently  saw 
Lincoln  poring  over  his  Euclid  by  candle-light 
at  night  in  his  bedroom,  where  three  or  four  other 
men  were  sleeping  after  a  hard  day's  work  in  the 
courts.  It  was  discipline  of  this  quality  which 
developed  and  strengthened  the  man's  mind  at 
his  most  critical  period,  and  his  growth  as  a  law- 
yer followed  as  a  natural  result,  though  he  him- 
self never  made  the  slightest  claim  to  legal  emi- 
nence. "I  am  only  a  mast- fed  lawyer,"  he  once 
protested,  meaning  that  his  mind  had  not  been 
nourished  with  the  sort  of  educational  provender 
which  rounds  out  the  ribs  of  aptitude,  and  this 
recognition  of  his  deficiencies  redoubled  his 
efforts.  At  one  time  he  had  apparently  thought 
that  his  ability  as  a  speaker  would  carry  him 
through,    but    doubtless    his    experience    with 

198 


LEADER  OF  THE  BAR 

Logan  and  other  able  lawyers  taught  him  to  mis- 
trust his  powers  in  this  respect,  and  his  advice  to 
some  law  students,  written  in  July,  1850,  shows 
his  altered  attitude.  "Extemporaneous  speaking 
should  be  practised  and  cultivated"  he  remarked. 
"It  is  the  lawyer's  avenue  to  the  public.  How- 
ever able  and  faithful  he  may  be  in  other  respects , 
people  are  slow  to  bring  him  business  if  he  can- 
not make  a  speech.  And  yet  there  is  not  a  more 
fatal  error  than  relying  too  much  on  speech-mak- 
ing. If  any  one,  upon  his  rare  powers  of  speak- 
ing, shall  claim  an  exemption  from  the  drudgery 
of  the  law,  his  case  is  a  failure  in  advance." 

But  even  with  close  application  to  business  and 
the  unmistakable  favor  of  the  court,  Lincoln  did 
not  rise  to  any  immediate  recognition  at  the  bar. 
His  ability  was  of  slow  growth,  and  there  was 
nothing  showy  or  impressive  about  his  practice 
in  the  courts.  Little  by  little,  however,  it  began 
to  dawn  upon  the  local  public  that  he  was  the 
most  uniformly  effective  man  of  all  those  who 
practised  on  the  circuit,  not  only  with  the  court, 
but  with  the  juries;  but  it  was  the  lawyers  who 
first  evidenced  the  discovery  by  retaining  him  to 
try  cases  for  them. 

The  confidence  and  appreciation  of  his  com- 

12  199 


LINCOLN  THE  LAWYER 

petitors  is  the  highest  compliment  which  any  law- 
yer can  receive,  and  it  was  this  professional 
recognition  which  largely  determined  Lincoln's 
subsequent  career,  for  it  enabled  him  to  leave  all 
the  minutiae  of  practice  and  the  drudgery  of 
preparation  to  other  lawyers  and  to  devote  him- 
self almost  exclusively  to  trial  work.  The  result 
was  that,  although  he  had  probably  a  wider 
acquaintance  than  any  other  practitioner  on  the 
circuit,  he  had  comparatively  few  personal  clients, 
most  of  his  business  coming  through  other  attor- 
neys, who  either  retained  him  of  their  own  initia- 
tive or  at  the  suggestion  of  the  litigants.  Indeed, 
his  reputation  as  an  advocate  became  such  that 
some  attorneys  advertised  themselves  as  his  part- 
ners ;  but  this  merely  meant  that  they  usually  re- 
tained him  to  try  their  cases,  or  possibly  that  they 
had  some  general  understanding  with  him  that  he 
would  act  as  counsel  for  them  during  certain 
terms  of  court  or  in  particular  counties.  It  thus 
frequently  happened  that  Lincoln  knew  nothing 
of  either  his  cause  or  his  client  until  he  arrived 
at  the  county-seat  where  the  trial  was  to  be  held, 
and  as  a  term  of  court  seldom  lasted  more  than 
a  few  days,  he  had  very  little  opportunity  to  pre- 
pare himself. 

•  200 


LEADER  OF  THE  BAR 

If  the  local  attorney  who  retained  him  had  an 
office,  he  made  that  his  headquarters;  but,  if,  as 
often  happened,  there  was  no  such  accommoda- 
tion available,  the  necessary  consultations  took 
place  in  the  tavern,  usually  in  the  judge's  private 
room,  and  regardless  of  his  Honor's  presence. 
Frequently,  however,  the  conference  was  held 
out  of  doors  to  avoid  interruptions,  and  it  was  no 
uncommon  thing  for  Lincoln  to  be  seen  seated 
on  the  ground  under  the  shade  of  some  conve- 
nient tree  in  the  court-house  square,  consulting 
with  his  associates,  their  clients  and  witnesses. 
Of  course  important  litigations  were  not  pre- 
pared in  this  haphazard  fashion,  but  very  few 
lawsuits  in  those  days  were  complicated,  and  both 
sides  usually  wanted  a  prompt  trial  of  the  mat- 
ter in  dispute. 

This  class  of  work  naturally  brought  Lincoln 
into  close  touch  with  all  sorts  of  men  and  women, 
and  trained  him  to  be  a  quick  and  unerring 
judge  of  character.  Each  case  was  a  distinct 
problem  replete  with  human  nature,  and  it  was 
doubtless  this  constant  insight  into  the  springs 
and  sources  of  human  action  which  developed 
his  instinctive  understanding  of  the  people  and 
taught  him  to  anticipate  and  lead  popular  opin- 

201 


LINCOLN  THE  LAWYER 

ion  as  no  other  public  man  in  this  country  had 
ever  done. 

It  is  probable  that  Lincoln  tried  more  cases 
between  1849  and  1860  than  any  other  man  on 
the  Eighth  Circuit.  He  was  the  acknowledged 
leader  of  the  local  bar,  whose  services  were  con- 
stantly in  demand,  and  the  one  man  who  could 
be  relied  upon  to  take  a  case  in  any  of  the  coun- 
ties comprising  the  circuit,  for  he  alone  covered 
the  entire  route.  It  is  misleading  to  belittle  the 
value  of  this  daily  experience  on  the  ground  that 
most  of  the  litigations  were  of  no  great  mone- 
tary importance.  Every  lawyer  familiar  with 
trial  work  knows  that  small  cases  often  raise 
more  difficult  questions  of  law  and  demand  nicer 
knowledge  of  legal  principles  than  causes  on 
which  millions  depend;  and  it  should  also  be 
remembered  that  many  of  the  small  suits  were, 
in  effect,  test  cases  which  settled  the  law  for  the 
new  State. 

Of  course  no  one  could  have  practised  before 
the  court  and  juries  day  after  day  and  year  after 
year  in  this  way  without  learning  something,  and 
Lincoln's  legal  development  was  marked  with 
every  year  of  his  practice.  In  1853  the  Illinois 
Central  Railroad  retained  him  as  its  counsel,  and 

202 


:!'■■'■■'  '■;''•  .  ."■ 


I-rom  a  photograph 

Portrait  of  Lincoln 


LEADER  OF  THE  BAR 

not  long  afterward  he  appeared  for  the  Rock 
Island  Road  and  many  other  important  represen- 
tative interests,  and  his  record  of  appeal  cases 
in  the  Supreme  Court  is  equalled  by  but  few 
members  of  the  Illinois  bar. 

It  is  impossible  to  overestimate  the  value  of 
these  active  professional  years  on  Lincoln's  sub- 
sequent career.  They  brought  him  into  close 
contact  and  collision  with  able  lawyers  of 
every  caliber,  with  men  of  force  and  strong 
character,  men  whose  business  it  was  to  reason, 
persuade,  cajole,  and  intimidate  others  to  their 
way  of  thinking,  and  who  employed  every  de- 
vice, from  legitimate  argument  to  brutal  ter- 
rorizing, to  accomplish  their  ends.  The  most 
capable  layman  is  no  match  for  the  trained 
attorney  in  an  argument,  and  a  man  who  is  fami- 
liar with  the  law  can  often  silence  and  overawe 
an  intellectual  superior  who  is  not  armed  with 
similar  knowledge.  Every  lawyer  of  experience 
has  seen  business  men  of  courage  and  conviction 
hesitate,  vacillate,  and  practically  disintegrate 
under  legal  menace  and  coercion ;  and  all  readers 
of  the  history  of  this  country  know  that  more 
than  one  occupant  of  the  White  House,  armed 
with  authority,  but  unskilled  in  the  ways  of  the 

205 


LINCOLN  THE  LAWYER 

law,  has  been  cowed  into  practical  abdication  by 
tactics  familiar  to  all  frequenters  of  the  courts. 

Lincoln's  daily  antagonists  were  such  men  as 
Logan,  Stuart,  Baker,  Browning,  Oglesby, 
Swett,  Scott,  Cullom,  and  Palmer — men,  drawn 
from  all  parts  of  the  country,  who  later  distin- 
guished themselves  as  judges,  congressmen, 
senators,  or  governors  of  States;  and  besides 
these  and  others  of  equal  brilliancy,  he  met  dif- 
ferent types  and  grades  of  the  profession  well 
qualified  to  prepare  him  for  the  great  cause  which 
was  soon  to  be  entrusted  to  his  care. 

Long  before  he  was  called  to  Washington, 
his  daily  life  in  the  courts  had  familiarized  him 
with  the  roarers  and  bulldozers  of  the  profession, 
with  the  sly  and  tricky  gentry  who  work  by  indi- 
rection, with  the  untrustworthy,  treacherous,  and 
unscrupulous  practitioner,  with  the  broad- 
minded  advocate  and  the  narrow,  bigoted  parti- 
zan. 

Years  before  he  encountered  them  in  his  cab- 
inet, he  had  met  such  men  as  Stanton  and  Seward 
and  Chase;  and  where  a  man  of  less  experience 
or  other  training  would  have  quarreled  with  them 
or  been  himself  torn  apart  in  their  struggles  for 
supremacy,  he  handled  them  with  the  sure  touch 

206 


LEADER  OF  THE  BAR 

of  command  and  made  them  work  together  for 
the  nation.  Stanton  utterly  failed  to  take  Lin- 
coln's measure  in  the  McCormick  reaper  case 
(hereafter  referred  to)  but  Lincoln  took  his,  and 
years  afterward,  when  the  great  war  secretary 
attempted  to  bulldoze  the  administration,  the 
patient  Executive  stood  unmoved  by  his  roaring 
and  employed  his  fanatical  egotism  to  the  best 
possible  advantage.  Chase  played  for  the  Presi- 
dency on  the  Cabinet  board,  thinking  his  masked 
moves  would  escape  the  indolent  attention  of  the 
"mast-fed  lawyer,"  and  suddenly  found  himself 
checked  and  manoeuvered  into  a  speedy  resigna- 
tion; and  history  has  disclosed  the  fact  that 
Seward,  one  of  the  most  distinguished  members 
of  the  New  York  bar,  unwittingly  received  more 
than  one  lesson  in  law  at  the  hands  of  the  tactful 
Executive. 


207 


XIX 


THE  JURY  LAWYER 


TT  is  conceded  by  all  his  contemporaries  that 
-1  Lincoln  was  the  best  all-round  jury  lawyer 
of  his  day  in  Illinois.  Undoubtedly  his  know- 
ledge of  human  nature  played  an  important  part 
in  his  success.  He  possessed  another  quality, 
however,  which  is  almost,  if  not  quite,  as  essential 
in  jury  work,  and  that  is  clearness  and  simplicity 
of  statement. 

It  will  be  remembered  that  in  his  Sangamon 
River  argument— his  first  boyish  attempt  at 
pleading  a  case — he  had  displayed  unusual  ability 
in  presenting  his  facts,  and  with  age  and  ex- 
perience he  developed  a  perfect  genius  for  state- 
ment. His  logical  mind  marshaled  facts  in  such 
orderly  sequence,  and  he  interpreted  them  in  such 
simple  language,  that  a  child  could  follow  him 
through  the  most  complicated  cause,  and  his  mere 
recital  of  the  issues  had  the  force  of  argument. 
Many  people  suppose  that  there  is  only  one 

208 


THE  JURY  LAWYER 

way  of  telling  the  truth,  and  that,  given  honesty, 
no  art  is  required  to  make  a  frank  and  fair  state- 
ment of  matters  in  dispute ;  but  this  is  a  popular 
delusion.  "A  truth  which  is  badly  put,"  says  Mr. 
Wells  in  his  "Mankind  in  the  Making,"  "is  not  a 
truth,  but  an  infertile,  hybrid  lie,"  and  every 
lawyer  of  experience  knows  that  not  one  man  in 
a  thousand  can  make  facts  speak  for  themselves. 
Certainly  the  average  practitioner  does  not 
master  his  material.  He  is  controlled  by  it,  and 
presents  his  cause  in  such  a  manner  as  to  ne- 
cessitate contradiction,  invite  confusion,  or  chal- 
lenge belief.  He  has  neither  the  confidence  nor 
the  skill  to  state  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  and  his  omissions  and  per- 
versions naturally  reflect  on  his  honesty  or  sin- 
cerity. 

Lincoln,  on  the  contrary,  relied  on  truth,  knew 
how  to  tell  it,  and  "with  perfect  sincerity  often 
deceived  the  deceitful."  "A  stranger  going  into 
a  court  when  he  was  trying  a  case,"  says  Mr. 
Arnold,  one  of  his  constant  associates,  "would 
after  a  few  minutes  find  himself  instinctively  on 
Lincoln's  side  and  wishing  him  success." 

This  lucidity  of  expression,  persuasive  clarity, 
and  convincing  simplicity  is,  of  course,  the  dis- 

209 


LINCOLN  THE  LAWYER 

tinctive  mark  of  Lincoln's  literary  style,  in  so 
far  as  his  writing  can  be  said  to  have  a  style ;  and 
of  this  habit,  nurtured  and  matured  in  the  court- 
room, came  some  of  the  ablest  state  papers  ever 
drawn  by  an  American,  and  some  of  the  acknow- 
ledged masterpieces  of  English  prose. 

Lincoln  not  only  spoke  a  language  which 
jurors  could  understand,  but  he  also  took  them 
into  his  confidence  and  made  them  feel,  as  one 
of  his  contemporaries  says,  that  he  and  they  were 
trying  the  case  together.  He  was  likewise  con- 
tinually the  friend  of  the  court  who  thought  it 
"would  be  only  fair"  to  let  in  this,  or  "only  right 
that  that  should  be  conceded,"  and  who  "reck- 
oned he  must  be  wrong,"  when  the  court  over- 
ruled him,  but  who,  nevertheless,  took  a  quiet  and 
tactful  exception  whenever  the  occasion  re- 
quired it. 

"Now  about  the  time  he  had  practised  through 
three  quarters  of  the  case  in  this  way,"  observes 
Leonard  Swett,  "his  adversary  would  wake  up 
to  find  himself  beaten.  He  was  as  wise  as  a 
serpent  in  the  trial  of  a  case,  and  what  he  so 
blandly  gave  away  was  only  what  he  could  n't 

get  and  keep." 

210 


THE  JURY  LAWYER 

Of  course  these  comments  were  merely  in- 
tended to  emphasize  the  fact  that  Lincoln  did 
not  try  both  sides  of  his  cases,  as  some  of  his 
eulogists  would  have  us  believe;  but  unfortu- 
nately they  have  been  distorted  into  an  implica- 
tion that  he  indulged  in  tricks  of  the  trade,  and 
that  his  apparent  fairness  was  nothing  better 
than  a  device  by  which  he  lured  the  unwary  to 
destruction. 

Mr.  E.  M.  Prince,  who  is  now  living  in  Bloom- 
ington,  Illinois,  and  who  heard  Lincoln  try  over 
a  hundred  cases  of  all  sorts,  is  a  competent 
authority  on  any  question  of  this  kind,  and  his 
testimony  is  direct  and  convincing.  "The  truth 
is,"  Mr.  Prince  remarked  while  talking  with  the 
writer,  "that  Mr.  Lincoln  had  a  genius  for  seeing 
the  real  point  in  a  case  at  once,  and  aiming  stead- 
ily at  it  from  the  beginning  of  a  trial  to  the  end. 
The  issue  in  most  cases  lies  in  very  narrow  com- 
pass, and  the  really  great  lawyer  disregards  every- 
thing not  directly  tending  to  that  issue.  The  me- 
diocre advocate  is  apt  to  miss  the  crucial  point  in 
his  case  and  is  easily  diverted  with  minor  matters, 
and  when  his  eyes  are  opened  he  is  usually  angry 
and  always  surprised.    Mr.  Lincoln  instinctively 

211 


LINCOLN  THE  LAWYER 

saw  the  kernel  of  every  case  at  the  outset,  never 
lost  sight  of  it,  and  never  let  it  escape  the  jury. 
That  was  the  only  trick  I  ever  saw  him  play." 

But  the  best  possible  proof  that  Mr.  Lincoln 
was  an  unusually  fair  practitioner  and  generous 
opponent  is  the  fact  that  he  made  no  enemies  in 
the  ranks  of  his  profession  during  all  his  active 
and  varied  career.  Forbearance  is  often  mistaken 
for  timidity,  and  tact  for  weakness,  and  it  not 
infrequently  happened  that  Lincoln's  profes- 
sional opponents  misinterpreted  his  attitude  to- 
ward them;  but  they  were  always  speedily  dis- 
illusioned. Mr.  Swett  remarked  that  "any  one 
who  took  Lincoln  for  a  simple-minded  man  [in 
the  court-room]  would  very  soon  wake  up  on  his 
back  in  a  ditch" ;  and  although  he  seldom  resorted 
to  tongue-lashing,  and  rarely  displayed  anger, 
there  is  abundant  evidence  that  no  one  ever 
attacked  him  with  impunity.  Judge  Weldon 
told  the  writer  that  on  one  occasion  a  lawyer 
challenged  a  juror  because  of  his  personal  ac- 
quaintance with  Mr.  Lincoln,  who  appeared  for 
the  other  side.  Such  an  objection  was  regarded 
as  more  or  less  a  reflection  upon  the  honor  of 
an  attorney  in  those  days,  and  Judge  Davis,  who 
was  presiding  at  the  time,  promptly  overruled  the 

212 


Leonard  Swett 


THE  JURY  LAWYER 

challenge ;  but  when  Lincoln  rose  to  examine  the 
jury  he  gravely  followed  his  adversary's  lead 
and  began  to  ask  the  talesmen  whether  they  were 
acquainted  with  his  opponent.  After  two  or 
three  had  answered  in  the  affirmative,  however, 
his  Honor  interfered. 

"Now,  Mr.  Lincoln,"  he  observed  severely, 
"you  are  wasting  time.  The  mere  fact  that  a 
juror  knows  your  opponent  does  not  disqualify 
him." 

"No,  your  Honor,"  responded  Lincoln,  dryly. 
"But  I  am  afraid  some  of  the  gentlemen  may 
not  know  him,  which  would  place  me  at  a  dis- 
advantage." 

A  successful  jury  lawyer  must  needs  be  some- 
thing of  an  actor  at  times,  and  during  his  ap- 
prentice years  Lincoln  displayed  no  little 
histrionic  ability  in  his  passionate  appeals  to  the 
juries.  Indeed,  his  notes  in  the  Wright  case 
show  that  he  occasionally  reverted  to  first  prin- 
ciples even  after  he  had  reached  the  age  of  dis- 
cretion. This  case  was  brought  on  behalf  of  the 
widow  of  a  Revolutionary  War  soldier  whose 
pension  had  been  cut  in  two  by  a  rapacious  agent, 
who  appropriated  half  of  the  sum  collected  for 
his  alleged  services.    The  facts  aroused  Lincoln's 

215 


LINCOLN  THE  LAWYER 

indignation,  and  his  memorandum  for  summing 
up  to  the  jury  ran  as  follows:  "No  contract.  Not 
professional  services.  Unreasonable  charge. 
Money  retained  by  defendant— not  given  by 
plaintiff.  Revolutionary  War.  Describe  Valley 
Forge  privations.  Ice.  Soldiers'  bleeding  feet. 
Plaintiff's  husband.  Soldier  leaving  home  for 
army.    Skin  defendant.    Close." 

Mr.  Herndon,  who  quotes  this  memorandum, 
testifies  that  the  soldiers'  bleeding  feet  and  other 
pathetic  properties  wTere  handled  very  effectively, 
and  that  the  defendant  was  skinned  to  the  entire 
satisfaction  of  the  jury.  It  was  only  occasionally, 
however,  that  Lincoln  indulged  in  fervid  oratory, 
and  his  advice  to  Herndon  shows  his  belief  in 
simplicity  and  reserve. 

"Don't  shoot  too  high,"  Herndon  reports  him 
as  saying.  "Aim  lower,  and  the  common  people 
will  understand  you.  They  are  the  ones  you  want 
to  reach— at  least  they  are  the  ones  you  ought  to 
reach.  The  educated  and  refined  people  will  un- 
derstand you,  anyway.  If  you  aim  too  high,  your 
ideas  will  go  over  the  heads  of  the  masses  and 
only  hit  those  who  need  no  hitting." 

To  interest  the  jurors  and  make  them  under- 
stand is,  of  course,  the  chief  endeavor  of  every 

216 


THE  JURY  LAWYER 

jury  advocate,  and  Lincoln  constantly  employed 
his  great  gifts  as  a  story-teller  to  illustrate,  sim- 
plify, and  reinforce  his  arguments,  which  is  an- 
other proof  that  he  did  not  waste  this  valuable 
ammunition  on  tavern  loiterers.  Stories  are  more 
interesting  than  logic  and  far  more  effective  with 
the  average  audience,  and  Lincoln's  juries 
usually  heard  something  from  him  in  the  way 
of  an  apt  comparison  or  illustration  which  im- 
pressed his  point  upon  their  minds. 

On  one  occasion  when  he  was  defending  a  case 
of  assault  and  battery  it  was  proved  that  the 
plaintiff  had  been  the  aggressor,  but  the  op- 
posing counsel  argued  that  the  defendant  might 
have  protected  himself  without  inflicting  injuries 
on  his  assailant. 

"That  reminds  me  of  the  man  who  was  at- 
tacked by  a  farmer's  dog,  which  he  killed  with 
a  pitchfork,"  commented  Lincoln. 

"'What  made  you  kill  my  dog?'  demanded 
the  farmer. 

"  'What  made  him  try  to  bite  me?'  retorted  the 
offender. 

"  'But  why  did  n't  you  go  at  him  with  the 
other  end  of  your  pitchfork?'  persisted  the 
farmer. 

217 


LINCOLN  THE  LAWYER 

"'Well,  why  did  n't  he  come  at  me  with  his 
other  end?'  was  the  retort." 

Lincoln  not  only  made  effective  use  of  stories 
with  the  jury,  but  frequently  employed  them  in 
arguing  to  the  court,  and  he  once  completely 
refuted  a  contention  that  custom  makes  law  with 
an  anecdote  drawn  from  his  own  experience. 

"Old  Squire  Bagley  from  Menard,"  he  began, 
"once  came  into  my  office  and  said,  'Lincoln,  I 
want  your  advice  as  a  lawyer.  Has  a  man  what  's 
been  elected  a  justice  of  the  peace  a  right  to 
issue  a  marriage  license?'  I  told  him  he  had  not. 
'Lincoln,  I  thought  you  was  a  lawyer,'  he  re- 
torted. 'Bob  Thomas  and  me  had  a  bet  on  this 
thing,  and  we  agreed  to  let  you  decide  it;  but  if 
thet  is  your  opinion,  I  don't  want  it,  for  I  know 
a  thunderin'  sight  better.  I  've  been  Squire  now 
eight  years,  and  I  Jve  done  it  all  the  time!'' 

Even  the  attorney  whose  argument  for  custom 
was  thus  answered  must  have  smiled  at  this  good- 
natured  disposal  of  his  claims,  and  Lincoln's 
humor  generally  freed  his  criticisms  of  all  of- 
fense. "He  can  compress  the  most  words  into 
the  smallest  ideas  of  any  man  I  ever  met,"  was, 
perhaps,  the  severest  retort  he  ever  uttered;  but 

218 


THE  JURY  LAWYER 

history  has  considerately  sheltered  the  identity 
of  the  victim. 

Wit  and  ridicule  were  Lincoln's  weapons  of 
offense  and  defense,  and  he  probably  laughed 
more  jury  cases  out  of  court  than  any  other  man 
who  practised  at  the  bar. 

"I  once  heard  Mr.  Lincoln  defend  a  man  in 
Bloomington  against  a  charge  of  passing  coun- 
terfeit money,"  Vice-President  Stevenson  told  the 
writer.  "There  was  a  pretty  clear  case  against 
the  accused,  but  when  the  chief  witness  for  the 
people  took  the  stand,  he  stated  that  his  name 
was  J.  Parker  Green,  and  Lincoln  reverted  to 
this  the  moment  he  rose  to  cross-examine.  Why 
J.  Parker  Green?  .  .  .  What  did  the  J. 
stand  for?  .  .  .  John?  .  .  .  Well,  why 
did  nt  the  witness  call  himself  John  P.  Green? 
.  .  .  That  was  his  name,  was  nt  it?  .  .  . 
Well,  what  was  the  reason  he  did  not  wish  to  be 
known  by  his  right  name?  .  .  .  Did  J. 
Parker  Green  have  anything  to  conceal;  and  if 
not,  why  did  J.  Parker  Green  part  his  name  in 
that  way?  And  so  on.  Of  course  the  whole 
examination  was  farcical,"  Mr.  Stevenson  con- 
tinued,   "but   there   was    something   irresistibly 

13  219 


LINCOLN  THE  LAWYER 

funny  in  the  varying  tones  and  inflections  of  Mr. 
Lincoln's  voice  as  he  rang  the  changes  upon  the 
man's  name;  and  at  the  recess  the  very  boys  in 
the  street  took  it  up  as  a  slogan  and  shouted  'J. 
Parker  Green!'  all  over  the  town.  Moreover, 
there  was  something  in  Lincoln's  way  of  in- 
toning his  questions  which  made  me  suspicious  of 
the  witness,  and  to  this  day  I  have  never  been 
able  to  rid  my  mind  of  the  absurd  impression  that 
there  was  something  not  quite  right  about  J. 
Parker  Green.  It  was  all  nonsense,  of  course; 
but  the  jury  must  have  been  affected  as  I  was, 
for  Green  was  discredited  and  the  defendant 
went  free." 


220 


XX 

THE  CROSS-EXAMINER 

THERE  were  no  official  shorthand  writers 
in  the  courts  while  Lincoln  practised,1  and 
the  lawyers  took  their  own  notes  of  the  testimony 
during  the  trial;  and  these,  together  with  such 
memoranda  as  the  judge  entered  on  his  minutes, 
formed  the  data  for  the  record.  Lincoln  him- 
self, however,  rarely  took  any  notes,  claiming 
that  it  distracted  his  attention ;  and  as  his  memory 
was  excellent  and  his  reputation  for  honesty  well 
established,  he  experienced  no  difficulty  in  sup- 
porting his  version  of  what  happened  at  the  trial 
when  the  records  were  necessary  for  the  appellate 
courts.2 

JThe  Hon.  Robert  R.  Hitt,  the  distinguished  representative  from 
Illinois  in  Congress,  advised  the  writer  that  "in  1858,  at  the  time 
of  the  Lincoln-Douglas  debates,  I  knew  of  no  other  shorthand 
writer  residing  in  Illinois.  There  were  no  court  shorthand  writers 
or  official  stenographers  in  the  State,  and  no  provision  of  law  for 
anything  of  the  kind." 

2  In  making  up  an  appellate  record  in  those  days,  each  lawyer 
stated  the  substance  of  what  he  thought  the  testimony  had  been, 
and  the  judge  supplemented  or  corrected  the  two  versions  and 
certified  the  result  to  the  higher  court. 

221 


LINCOLN  THE  LAWYER 

None  of  the  bar  ever  attempted,  however,  to 
secure  a  verbatim  report  of  the  questions  and  an- 
swers, and  therefore  it  is  impossible  to  obtain  any 
official  illustrations  of  Lincoln's  methods  of 
handling  witnesses.  There  is  abundant  proof, 
nevertheless,  of  his  skill  in  this  particular,  and  it 
is  conceded  by  all  his  contemporaries  that  as  a 
cross-examiner  he  had  no  equal  at  the  bar. 

"In  the  trial  of  a  case  he  moved  cautiously," 
said  Judge  Weldon,  "and  never  examined  or 
cross-examined  witnesses  to  the  detriment  of  his 
own  side.  If  the  witness  told  the  truth,  he  was 
safe  from  his  attacks ;  but  woe  betide  the  unlucky 
or  dishonest  individual  who  suppressed  the  truth 
or  colored  it." 

Another  of  his  associates  testifies  that  he 
would  not  tolerate  the  evasions  of  his  own  wit- 
nesses when  they  were  being  questioned  by  his 
opponents,  and  more  than  once  he  openly  re- 
proved his  own  clients  for  dodging  and  sulking 
in  the  witness-chair. 

"He  was  a  great  cross-examiner,"  Mr.  James 

Ewing  remarked  to  the  writer,  "in  that  he  never 

asked  an  unnecessary  question.     He  knew  when 

and  where  to  stop  with  a  witness,  and  when  a 

man  has  learned  that  he  is  entitled  to  take  rank 

as  an  expert  questioner." 

222 


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THE  CROSS-EXAMINER 

"I  shall  never  forget  my  experience  with  him," 
observed  Mr.  James  Hoblit  of  Logan  County, 
Illinois,  one  of  the  few  men  now  living  who  ever 
faced  him  in  the  witness-chair.  "I  was  sub- 
poenaed in  a  case  brought  by  one  Paullin  against 
my  uncle,  and  I  knew  too  much  about  the  matter 
in  dispute  for  my  uncle's  good.  The  case  was 
not  of  vital  importance,  but  it  seemed  very  serious 
to  me,  for  I  was  a  mere  boy  at  the  time.  Mr. 
Paullin  had  owned  a  bull  which  was  continually 
raiding  his  neighbor's  corn,  and  one  day  my 
uncle  ordered  his  boys  to  drive  the  animal  out  of 
his  fields,  and  not  to  use  it  too  gently,  either. 
Well,  the  boys  obeyed  the  orders  only  too  liter- 
ally, for  one  of  them  harpooned  the  bull  with  a 
pitchfork,  injuring  it  permanently,  and  I  saw 
enough  of  the  occurrence  to  make  me  a  danger- 
ous witness. 

"The  result  was  that  Paullin  sued  my  uncle, 
the  bovs  were  indicted  for  malicious  mischief, 
Mr.  Lincoln  was  retained  by  the  plaintiff,  who 
was  determined  to  make  an  example  of  some- 
body, and  I  was  subpoenaed  as  a  witness.  My 
testimony  was,  of  course,  of  the  highest  possible 
importance,  because  the  plaintiff  could  n't  make 
my  cousins  testify,  and  I  had  every  reason  to  want 

225 


LINCOLN  THE  LAWYER 

to  forget  what  I  had  seen,  and  though  pretty 
frightened,  I  determined,  when  I  took  the  stand, 
to  say  as  little  as  possible.  Well,  as  soon  as  I  told 
Mr.  Lincoln  my  full  name  he  became  very  much 
interested,  asking  me  if  I  was  n't  some  relative 
of  his  old  friend  John  Hoblit  who  kept  the  half- 
way house  between  Springfield  and  Blooming- 
ton  ;  and  when  I  answered  that  he  was  my  grand- 
father, Mr.  Lincoln  grew  very  friendly,  plying 
me  with  all  sorts  of  questions  about  family  mat- 
ters, which  put  me  completely  at  my  ease,  and 
before  I  knew  what  was  happening,  I  had  for- 
gotten to  be  hostile  and  he  had  the  whole  story. 
After  the  trial  he  met  me  outside  the  court-room 
and  stopped  to  tell  me  that  he  knew  I  had  n't 
wanted  to  say  anything  against  my  people,  but 
that  though  he  sympathized  with  me,  I  had  acted 
rightly  and  no  one  could  criticize  me  for  what  I 
had  done.  The  whole  matter  was  afterward  ad- 
justed, but  I  never  forgot  his  friendly  and  en- 
couraging words  at  a  time  when  I  needed  sym- 
pathy and  consolation." 

Cross-examination  makes  greater  demands 
upon  a  lawyer  than  any  other  phase  of  trial  work, 
and  it  has  been  rightly  termed  an  art.  To  suc- 
ceed in  it  the  practitioner  must  be  versed  in  the 

226 


THE  CROSS-EXAMINER 

rules  of  evidence ;  he  must  be  familiar  with  all  the 
facts  in  his  case,  and  keep  them  continually  in 
his  mind ;  he  must  think  logically,  be  far-sighted, 
tactful,  and  a  keen  judge  of  human  nature.  All 
these  qualities  Lincoln  possessed  to  an  unusual 
degree,  and,  in  addition,  he  exerted  a  remarkable 
personal  influence  upon  every  one  with  whom  he 
came  into  contact.  Men  who  were  openly  op- 
posed to  him  became  fascinated  when  they  met 
him,  and  few  ever  retained  their  hostility.  This 
result  was  effected  without  any  seeming  effort 
on  his  part,  and  Lincoln  was  singularly  free  from 
all  the  arts  and  graces,  natural  or  cultivated, 
which  are  usually  associated  with  personal  charm. 
He  was  direct,  simple,  and  unaffectedly  frank, 
and  the  conclusion  is  irresistible  that  he  was  en- 
dowed with  psychic  qualities  of  extraordinary 
power.  Nothing  except  this  can  properly  explain 
his  wonderful  control  of  witnesses  and  juries, 
and  every  experienced  lawyer  knows  that  strong 
individuality,  commanding  presence,  and  per- 
sonal magnetism  are  essential  factors  in  the 
equipment  of  all  great  cross-examiners.  More 
than  one  man  has  described  the  effect  of  Lin- 
coln's eyes  by  saying  that  they  appeared  to  look 
directly  through  whatever  he  concentrated  his 

227 


LINCOLN  THE  LAWYER 

gaze  upon,  and  it  is  well  known  that  during  his 
frequent  fits  of  abstraction  he  became  absolutely 
oblivious  to  the  bustle  and  confusion  of  the 
court-room  and  saw  nothing  of  the  scene  before 
him. 

But  although  there  was  something  mysterious 
in  Lincoln's  personality  which  played  an  impor- 
tant part  in  his  success  as  a  cross-examiner,  his 
mastery  of  the  art  was  acquired  in  the  only  way 
it  can  be  acquired,  and  that  is  by  constant,  daily 
practice  in  the  courts.  He  was  a  natural  logician, 
and  by  slow  degrees  he  cultivated  this  gift  until 
he  could  detect  faulty  reasoning,  no  matter  how 
skilfully  it  was  disguised.  In  almost  every  in- 
stance he  saw  the  logical  conclusion  of  an  answer 
long  before  it  dawned  upon  the  witness,  and  was 
thus  able  to  lead  him  without  appearing  to  do  so. 
It  will  be  seen  in  another  chapter  how  effectively 
he  once  employed  this  art. 

Mr.  Arnold,  comparing  Douglas  and  Lincoln, 
says:  "Both  were  strong  jury  lawyers.  Lincoln 
was,  on  the  whole,  the  strongest  we  ever  had  in 
Illinois.  Both  were  distinguished  for  their  abil- 
ity in  seizing  and  bringing  out  distinctly  and 
clearly  the  real  points  in  a  case.  Both  were  happy 
in  the  examination  of  witnesses,   but   I   think 

228 


THE  CROSS-EXAMINER 

Lincoln  was  the  stronger  of  the  two  in  cross- 
examination." 

This  is  valuable  testimony,  coming  as  it  does 
from  a  professional  associate  of  many  years' 
standing;  and  a  careful  reading  of  the  great 
debates  demonstrates  that  Lincoln  was  not  only 
a  more  effective  questioner,  but  in  every  other 
way  a  better-equipped  lawyer  than  Douglas.  In- 
deed, it  was  Douglas's  errors  of  law  quite  as 
much  as  his  errors  of  statesmanship  which  cost 
him  the  Presidency. 

Lincoln's  skill  as  a  cross-examiner  effected 
some  of  his  most  dramatic  triumphs,  and  his 
cause  celebre  is  undoubtedly  the  trial  of  William 
Armstrong  for  the  killing  of  James  Metzker, 
where  his  talents  in  this  particular  saved  the  day 
for  his  client. 

The  story  of  this  now  famous  case  has  often 
been  recounted,  and  its  dramatic  features  have 
been  skilfully  utilized  in  at  least  one  volume  of 
fiction,1  but  the  distortions  wrought  by  many 
versions  justify  a  complete  retelling  of  the  facts 
gathered  directly  from  the  records  themselves  and 
from  an  interview  with  Judge  Lyman  Lacey, 
who  was  associated  with  Mr.  Walker,  the  def  end- 

lSee  Edward  Eggleston's  "The  Graysons." 

229 


LINCOLN  THE  LAWYER 

ant's  attorney,  and  is  still  living  in  Mason 
County. 

In  the  days  when  Lincoln  was  working  as  a 
clerk  in  Offutt's  New  Salem  store  he  had  won  the 
respect  and  admiration  of  the  rough  element  in 
the  community  by  flooring  one  Jack  Armstrong, 
the  leader  of  the  Clary's  Grove  boys,  in  a 
wrestling-match,  and  the  fallen  champion  in- 
stantly became  his  stanch  friend  and  ally.  Arm- 
strong afterward  married,  and  Lincoln,  who 
knew  his  wife,  could  not  resist  her  appeal  when 
she  sought  him  out  during  the  great  debate  with 
Douglas  and  begged  him  to  come  to  the  rescue 
of  her  son,  who  was  charged  with  murder  and 
was  on  the  point  of  being  tried.  Mr.  William 
Walker,  a  skilful  lawyer,  had  been  retained  for 
the  defense,  but  as  the  case  against  his  client  was 
exceedingly  serious,  he  was  only  too  willing  to 
have  expert  assistance,  and  Lincoln  therefore 
laid  aside  his  pressing  political  engagements  and 
plunged  at  once  into  the  trial  of  the  case. 

The  defendant,  William  Armstrong,  popu- 
larly known  as  "Duff,"  was  a  youth  of  bad 
habits,  and  on  August  29,  1857,  while  under  the 
influence  of  liquor,  he  had  quarreled  with  another 
young  man  by  the  name  of  Metzker,  and  had 

230 


THE  CROSS-EXAMINER 

beaten  him  severely.  This  occurred  during  the 
afternoon;  but  when  the  quarrel  was  renewed 
late  at  night,  one  Norris  joined  in  the  fracas,  and, 
between  him  and  Armstrong,  Metzker  received 
injuries  which  resulted  in  his  death.  Popular  in- 
dignation against  the  accused  was  so  violent  in 
Mason  County  that  Armstrong's  lawyer  moved 
for  a  change  of  venue,  claiming  that  his  client 
could  not  receive  a  fair  trial  in  the  local  court; 
and  the  judge  was  apparently  of  the  same 
opinion,  for  he  removed  the  case  to  Beardstown, 
the  county-seat  of  Cass  County.  Meanwhile 
Norris,  the  other  defendant,  was  brought  to  trial 
before  the  home  tribunal,  where  it  was  clearly 
shown  that  he  had  assaulted  the  deceased  with  a 
cart-rung;  but  it  was  not  demonstrated  that  his 
blows  had  caused  death,  and  the  body  showed 
other  wounds  not  necessarily  made  by  such  a 
weapon.  Under  these  circumstances  the  jury 
brought  in  a  verdict  of  manslaughter,  and  the 
defendant  was  sentenced  to  eight  years'  im- 
prisonment. 

This  was  the  situation  when  Hannah  Arm- 
strong appealed  to  Lincoln;  but  despite  the 
gloomy  outlook,  he  took  a  hopeful  view  and  re- 
assured the  anxious  mother.    Not  only  were  the 

231 


LINCOLN  THE  LAWYER 

facts  against  his  client,  but  the  Illinois  law  of 
that  day  did  not  permit  a  defendant  to  testify  in 
his  own  behalf,  so  that  Armstrong  was  precluded 
from  giving  his  own  version  of  the  story  and 
denying  the  testimony  of  the  accusing  witnesses. 
The  assistant  prosecuting  attorney  was  Mr.  J. 
Henry  Shaw,  and  Caleb  J.  Dillworth,  another 
able  lawyer,  was  associated  with  him,  but  Lin- 
coln scored  against  them  at  the  start  by  securing 
a  jury  of  young  men  whose  average  age  was 
not  over  twenty-five.  Most  of  the  witnesses 
were  also  young,  and  these  Lincoln  handled  so 
skilfully  on  cross-examination  that  their  testi- 
mony did  not  bear  heavily  against  the  accused. 
Almost  all  of  them  were  from  the  neighborhood 
of  New  Salem,  and  whenever  the  examiner  heard 
a  familiar  name  he  quickly  took  advantage  of  the 
opening  to  let  the  witness  know  that  he  was 
familiar  with  his  home,  knew  his  family,  and 
wished  to  be  his  friend.  These  tactics  succeeded 
admirably,  and  no  very  damaging  testimony  was 
elicited  until  a  man  by  the  name  of  Allen  took 
the  stand.  This  witness,  however,  swore  that  he 
actually  saw  the  defendant  strike  the  fatal  blow 
with  a  slungshot  or  some  such  wearjon ;  and  Lin- 
coln, pressing  him  closely,  forced  him  to  locate 

232 


THE  CROSS-EXAMINER 

the  hour  of  the  assault  as  about  eleven  at  night, 
and  then  demanded  that  he  inform  the  jury  how 
he  had  managed  to  see  so  clearly  at  that  time  of 
night.  "By  the  moonlight,"  answered  the  wit- 
ness, promptly.  "Well,  was  there  light  enough 
to  see  everything  that  happened?"  persisted  the 
examiner.  The  witness  responded  "that  the 
moon  was  about  in  the  same  place  that  the  sun 
would  be  at  ten  o'clock  in  the  morning  and  was 
almost  full,1  and  the  moment  the  words  were  out 
of  his  mouth  the  cross-examiner  confronted  him 
with  a  calendar  showing  that  the  moon,  which  at 
its  best  was  only  slightly  past  its  first  quarter  on 
August  29,  had  afforded  practically  no  light  at 
eleven  o'clock  and  that  it  had  absolutely  set  at 
seven  minutes  after  midnight.  This  was  the 
turning-point  in  the  case,  and  from  that  moment 
Lincoln  carried  everything  before  him,  securing 
an  acquittal  of  the  defendant  after  a  powerful 
address  to  the  jury. 

There  is  a  singular  myth  connected  with  this 
case,  to  the  effect  that  Mr.  Lincoln  played  a 
trick  on  the  jurors  by  substituting  an  old 
calendar    for    the    one    for    the    year    of    the 

lThis  is  the  witness's  answer  as  reported  by  Mr.  Henry  Shaw,  the 

District  Attorney. 

233 


LINCOLN  THE  LAWYER 

murder,  and  virtually  manufacturing  the  testi- 
mony which  carried  the  day.  How  such  a  rumor 
started  no  one  can  say,  but  it  goes  far  to  prove 
the  impossibility  of  ever  successfully  refuting  a 
lie;  for  though  repeatedly  exposed,  it  still  per- 
sists on  the  Illinois  circuit  to-day.  The  facts  are, 
of  course,  that  the  calendar  for  August  29,  1857, 
shows  the  position  of  the  moon  precisely  as  Lin- 
coln claimed  it,1  and  every  one  who  understands 
anything  of  trial  work  knows  that  an  important 
exhibit  of  that  sort  would  be  examined  by  the 
judge  and  the  opposing  lawyers  as  well  as  by  the 
jury,  besides  being  marked  for  identification  if 
submitted  in  evidence.  Therefore  Lincoln  would 
have  been  a  fool,  as  well  as  a  disreputable 
trickster,  if  he  had  resorted  to  the  asinine  practice 
outlined  in  this  silly  tale,  which  practically  dis- 
proves itself. 

'In  September,  1905,  the  United  States  Naval  Observatory,  an- 
swering the  writer's  inquiry,  reported  that  on  August  29-30,  1857, 
the  moon  set  at  7  minutes  5  seconds  after  midnight,  and  at  cul- 
mination, during  the  preceding  twenty-four  hours,  "was  2  days 
9  hours  and  46.1  minutes  past  the  first  quarter." 


234 


XXI 


LEGAL  ETHICS 


DESPITE  his  success  in  the  Armstrong  and 
other  capital  cases,  Lincoln  was  not  well 
qualified  for  work  of  this  character,  and  he 
avoided  the  practice  of  criminal  law  as  far  as 
j)ossible. 

There  has  long  been  a  tradition  in  the  old 
Eighth  Illinois  Circuit  that  he  once  defended  a 
murderer  who  was  convicted,  sentenced,  and 
hanged;  but  as  capital  cases  resulting  in  con- 
viction are  almost  invariably  appealed  to  the 
highest  tribunal,  and  as  the  Supreme  Court  re- 
ports do  not  record  any  murder  case  with  which 
he  was  associated,  the  rumor  has  been  supposed 
to  be  without  foundation.  There  is,  however,  a 
paper  in  Lincoln's  handwriting  on  file  in  Han- 
cock County  showing  that  he  was  associated  with 
the  defense  of  one  William  Fraim,  who  was  tried 
and  convicted  April  25th,  1839,  for  the  murder  of 
a  man  named  William  Neathammer  and  subse- 
quently hanged  May  18th  of  the  same  year,  and 

235 


LINCOLN  THE  LAWYER 

this  is  doubtless  the  hitherto  unlocated  cause  of 
circuit  memories.1 

Although  he  did  not  seek  criminal  practice, 
Lincoln  did  nevertheless  occasionally  appear  in 
homicide  cases,2  and  his  defense  of  "Peachy" 
Harrison,  grandson  of  his  old  political  rival 
Peter  Cartwright,  the  circuit-riding  preacher, 
though  less  dramatic  than  the  Armstrong  case, 
is  perhaps  one  of  the  best  illustrations  of  his  re- 
markable power  with  a  jury. 

Young  Harrison  and  a  youth  by  the  name  of 
Greek  Crafton  quarreled  over  a  question  of 
politics,  and  a  fight  ensued  in  which  Crafton  re- 
ceived a  knife-thrust  resulting  in  his  death.  The 
case  attracted  considerable  attention,  and  both 
the  prosecution  and  the  defense  were  ably  repre- 
sented, Maj.  Gen.  John  M.  Palmer,  afterward 
Governor  of  Illinois,  and  John  A.  McClernand, 

xThe  writer  is  indebted  to  the  courtesy  of  Mr.  Thos.  F.  Dunn, 
Ex-Circuit  Court  Clerk  of  Hancock  County,  for  these  facts  and 
the  opportunity  of  examining  the  original  papers  connected  there- 
with. 

2  Lincoln  acted  as  prosecutor  in  at  least  one  murder  case.  He 
was  appointed  by  the  court  to  conduct  the  people's  case  against 
one  Wyant,  who  was  represented  by  Leonard  Swett,  and  a  battle 
royal  followed  between  the  two  lawyers  which  is  vividly  remem- 
bered by  many  of  the  residents  of  Bloomington,  Illinois,  with  whom 
the  writer  talked.  After  a  trial  lasting  many  days  the  jurors 
brought  in  an  irregular  verdict,  which  virtually  committed  the 
defendant  to  the  lunatic  asylum,  but  finally  they  acquitted  him 
under  what  was  equivalent  to  a  court  direction. 

236 


LEGAL  ETHICS 

who  also  became  a  distinguished  general  in 
the  Civil  War,  appearing  for  the  people,  and 
Lincoln,  Herndon,  Judge  Logan,  and  Shelby 
M.  Cullom,  the  present  United  States  senator 
and  ex-Governor  of  Illinois,  being  retained 
for  the  defendant.  There  was  some  conflict 
of  testimony  over  the  facts  leading  up  to  the 
killing,  but  the  defense  did  not  make  much 
impression  until  Lincoln  put  the  defendant's 
grandfather,  Peter  Cartwright,  on  the  stand, 
and  with  touching  solicitude  drew  from  the 
old  man  the  story  of  his  last  interview  with 
the  deceased,  in  which  he  expressed  his  reconcilia- 
tion with  his  assailant,  whom  he  prayed  would 
not  be  held  responsible  for  his  death.  Then,  with 
virtually  no  facts  to  support  his  plea,  Lincoln 
began  his  address  to  the  jury,  exhorting  them  to 
heed  the  dying  victim's  words  and  abstain  from 
visiting  further  sorrow  and  affliction  upon  the 
venerable  preacher  who  had  delivered  them  a 
message  almost  from  the  other  world;  and  so 
powerfully  did  he  move  his  auditors  that  the 
efforts  of  the  prosecution  were  unavailing  and  a 
verdict  of  acquittal  followed. 

Lincoln  was  not  considered  a  formidable  op- 
ponent  in  the  criminal  courts,  however,  unless  he 

14  237 


LIXCOLN  THE  LAWYER 

thoroughly  believed  in  the  justice  of  his  cause. 
Mr.  Whitney  reports  that  on  one  occasion  when 
he  was  defending  a  man  charged  with  man- 
slaughter, the  testimony  demonstrated  that  his 
client  ought  to  have  been  indicted  for  murder  in 
the  first  degree,  whereupon  Lincoln  instantly  lost 
all  interest  in  the  case.  He  did  not  actually 
abandon  the  defense,  but  he  could  not  cooperate 
effectively  with  his  associates,  who  were  endeav- 
oring to  acquit  the  defendant,  and  one  of  them 
states  that  when  Lincoln  addressed  the  jurors  he 
disparaged  the  effort  which  had  been  made  to 
work  upon  their  feelings  and  confined  himself  to 
a  strictly  professional  argument  along  conven- 
tional lines,  with  the  result  that  the  defendant 
was  found  guilty  and  sentenced  to  three  years' 
imprisonment.  This  fairly  disgusted  Mr.  Whit- 
ney, who  was  anxious  to  have  the  murderer  ac- 
quitted, and  he  does  not  hesitate  to  characterize 
Mr.  Lincoln's  conduct  as  "atrocious." 

But  Lincoln  was  guilty  of  many  other  "atroci- 
ties" of  the  same  character.  It  is  well  known 
that  he  virtually  abandoned  his  client  in  another 
capital  case  when  he  discovered  that  he  was  de- 
fending a  guilty  man.  "You  speak  to  the  jury," 
he  said  to  Leonard  Swett,  his  associate  counsel; 

238 


LEGAL  ETHICS 

"if  I  say  a  word,  they  will  see  from  my  face  that 
the  man  is  guilty  and  convict  him."  On  another 
occasion,  when  it  developed  that  his  client  had  in- 
dulged in  fraudulent  practices,  he  walked  out  of 
the  court-room  and  refused  to  continue  the  case. 
The  judge  sent  a  messenger,  directing  him  to 
return,  but  he  positively  declined.  "Tell  the 
judge  that  my  hands  are  dirty  and  I  've  gone 
away  to  wash  them,"  was  his  disgusted  response. 

This  conduct  in  the  court-room  was  in  entire 
keeping  with  his  office  practice,  where  he  declined 
time  and  again  to  undertake  doubtful  causes,  dis- 
couraged litigation,  and  discountenanced  sharp 
practices. 

"Yes"  Mr.  Herndon  reports  him  as  advising  a 
client,  "we  can  doubtless  gain  your  case  for  you; 
we  can  set  a  whole  neighborhood  at  loggerheads; 
we  can  distress  a  widowed  mother  and  her  six 
fatherless  children,  and  thereby  get  for  you  six 
hundred,  dollars  to  which  you  seem  to  have  a  legal 
claim,  but  which  rightfully  belongs,  it  appears  to 
me,  as  much  to  the  woman  and  her  children  as  it 
does  to  you.  You  must  remember,  however,  that 
some  things  legally  right  are  not  morally  right. 
We  shall  not  take  your  case,  but  we  will  give  you 
a  little  advice  for  which  we  will  charge  you 

239 


LINCOLN  THE  LAWYER 

nothingo  You  seem  to  be  a  sprightly,  energetic 
man.  We  would  advise  you  to  try  your  hand  at 
making  six  hundred  dollars  in  some  other  way." 

At  another  time  he  was  very  anxious  to  secure 
delay  in  a  certain  case,  and  Herndon  drew  up  a 
dilatory  plea  which  would  effectually  postpone 
the  trial  for  at  least  one  term  of  court.  It  was 
the  sort  of  thing  which  is  condoned  in  almost 
every  law  office,  but  Lincoln  repudiated  it  the 
moment  it  came  to  his  notice.  "Is  this  founded 
on  fact?"  he  demanded  of  his  partner,  and  Hern- 
don was  obliged  to  admit  that  it  was  not,  urging, 
however,  that  it  would  save  the  interests  of  their 
client,  which  would  otherwise  be  imperiled.  But 
Lincoln  was  not  to  be  persuaded.  'You  know  it 
is  a  sham,"  he  answered,  "and  a  sham  is  very 
often  but  another  name  for  a  lie.  Don't  let  it  go 
on  record.  The  cursed  thing  may  come  staring 
us  in  the  face  long  after  this  suit  has  been  for- 
gotten." Herndon  complied  with  this  instruc- 
tion and  the  paper  was  withdrawn. 

These  and  similar  actions  have  been  character- 
ized by  one  highly  respectable  authority  as  "ad- 
mittedly detracting  from  Lincoln's  character  as 
a  lawyer,"  but  no  member  of  the  profession  who 
has  the  best  interests  of  his  calling  at  heart  will 

240 


LEGAL  ETHICS 

accept  such  a  conclusion.  On  the  contrary,  it  is 
because  he  had  the  courage  and  character  to  up- 
hold the  highest  standards  of  the  law  in  daily 
practice  that  Lincoln  is  entitled  to  a  place  in  the 
foremost  rank  of  the  profession.  He  lived  its 
ideals  and  showed  them  to  be  practical,  and  his 
example  gives  inspiration  and  encouragement  to 
thousands  of  practitioners  who  believe  that  those 
things  which  detract  from  the  character  of  the 
man  detract  from  the  character  of  the  lawyer. 

Some  of  Lincoln's  biographers  apparently  dis- 
regard his  legal  history  because  he  never  suc- 
ceeded in  making  much  more  than  a  bare  living 
from  his  practice,  and  they  seemingly  conclude 
from  this  fact  that  he  is  not  entitled  to  high  rank 
in  the  profession.  This  view,  of  course,  misses 
one  of  the  vital  points  in  Lincoln's  character 
both  as  a  man  and  a  lawyer,  for  he  placed  prin- 
ciple beyond  price  and  illustrated  the  maxim  that 
it  is  "better  to  make  a  life  than  a  living." 

Before  he  had  won  his  place  at  the  bar  he  had 
stated  his  theories  on  the  subject.  "The  matter 
of  fees  is  important,  far  beyond  the  mere  question 
of  bread  and  butter  involved,"  he  wrote  in  his 
notes  for  a  law  lecture.  "Properly  attended  to, 
fuller  justice  is  done  to  both  lawyer  and  client. 

241 


LINCOLN  THE  LAWYER 

An  exorbitant  fee  should  never  be  charged.  As 
a  general  rule,  never  take  your  whole  fee  in  ad- 
vance, nor  any  more  than  a  small  retainer.  When 
fully  paid  beforehand,  you  are  more  than  a  com- 
mon mortal  if  you  can  feel  the  same  interest  in 
the  case  as  if  something  was  still  in  prospect  for 
you  as  well  as  for  your  client." 

This  was  largely  the  advice  of  a  theorist;  but 
Lincoln  carried  it  into  practice  so  completely  that 
the  profession  was  scandalized.  Indeed,  one  of 
his  associates  relates  an  incident  where  Lincoln's 
scruples  proved  exceedingly  embarrassing.  He 
had  been  retained  to  oppose  the  removal  of  a  con- 
servator, or  legal  guardian,  of  a  woman  whose 
mind  was  deranged.  The  estate  involved  about 
ten  thousand  dollars,  and  the  man  who  was  at- 
tacking the  conservator  evidently  desired  to  have 
him  removed  so  that  he  could  marry  the  lunatic 
and  obtain  possession  of  her  funds.  Lincoln 
made  short  work  of  this  nefarious  business;  but 
when  he  learned  that  the  attorney  who  had  re- 
tained him  had  charged  two  hundred  and  fifty 
dollars  for  their  joint  services,  he  refused  to  take 
any  share  of  the  money  until  the  fee  had  been 
reduced  to  what  he  deemed  a  reasonable  amount. 

When  Judge   Davis   heard   of  this,   he   was 

242 


LEGAL  ETHICS 

highly  indignant.  "Lincoln,  you  are  impoverish- 
ing the  bar  by  your  picayune  charges,"  he  is  said 
to  have  exclaimed;  and  the  lawyers  thereupon 
tried  the  offender  by  what  was  called  on  the  cir- 
cuit an  "orgmathorical"  (mock)  court,  but  he 
stood  trial,  and  being  found  guilty,  paid  the  fine 
with  the  utmost  good-nature. 

Judge  Weldon  describes  another  episode 
which  perfectly  illustrates  Lincoln's  attitude  to- 
ward more  than  one  aspect  of  the  law.  A  Por- 
tuguese by  the  name  of  Dungee  married  a  girl 
named  Spencer,  and  later  there  was  a  family 
quarrel  between  the  bridegroom  and  his  relatives- 
in-law  which  became  so  bitter  that  the  girl's 
brother  referred  to  her  husband  as  "a  nigger," 
and  followed  this  up  by  describing  him  as  "a 
nigger  married  to  a  white  woman."  Dungee 
thereupon  retained  Lincoln  and  sued  his  brother- 
in-law  for  slander.  The  defendant  was  repre- 
sented by  Mr.  Moore  and  Judge  Weldon,  and 
when  the  case  was  moved  for  trial  in  Clinton 
County,  Judge  Weldon  demurred  to  Lincoln's 
complaint  on  technical  grounds,  and  the  de- 
murrer was  sustained.  Lincoln  was  not  too 
pleased  that  his  papers  were  rejected  as  faulty, 
but  he  redrew  them,  merely  remarking  to  his  op- 

243 


LINCOLN  THE  LAWYER 

ponents,  with  significant  determination,  "Now  I 
will  beat  you!"  When  the  case  reappeared  for  a 
hearing,  he  was  as  good  as  his  word,  attacking 
the  defendant  with  great  severity  for  his  scanda- 
lous utterances. 

After  a  two  days'  battle,  the  jury  decided  for 
the  plaintiff,  and  the  verdict  amounted  to  what 
was  a  large  sum  in  those  days.  But  although  he 
had  won  the  fight,  Lincoln  was  not  satisfied  with 
the  result.  "As  a  peacemaker  the  lawyer  has  a 
superior  opportunity  of  being  a  good  man"  he 
had  written  as  a  theorist,  and  in  practice  he  was 
still  able  to  see  that  money  damages  do  not  heal 
family  feuds.  Thereupon  he  persuaded  his 
client  not  to  insist  upon  the  payment  of  the 
verdict,  and  the  matter  was  finally  adjusted  by 
the  defendant  agreeing  to  pay  the  costs  and 
lawyers'  fees.  Lincoln  stipulated  that  his  ad- 
versaries should  fix  the  amount  of  his  fee;  but 
when  they  declined  to  do  so,  he  remarked:  "Well 
gentlemen,  dont  you  think  I  have  honestly 
earned  twenty-five  dollars?" 

Certainly  there  are  good  grounds  for  criticizing 
Lincoln  as  a  business  man,  and  no  one  will  dis- 
pute the  charge  that  he  was  utterly  lacking  in  all 
the  essentials  of  commercial  genius. 

2U 


XXII 


LEGAL   REPUTATION 


ONE  of  Lincoln's  latest  biographers,  in  ex- 
pressing admiration  for  his  statesmanship, 
enumerates  his  disadvantages,  and  asserts  that 
before  he  went  to  Washington  "he  had  had  no 
experience  in  diplomacy  and  statesmanship;  as 
an  attorney  he  had  dealt  only  with  local  and 
State  statutes ;  he  had  never  argued  a  case  in  the 
Supreme  Court  and  he  had  never  studied  inter- 
national law." 

There  is  very  little  inspiration  in  the  career  of 
a  man  whose  achievements  are  inexplicable  or 
whose  natural  endowments  are  the  despair  of 
ordinary  mortals,  and  eulogies  which  tend  to  rob 
Lincoln  of  human  interest  and  incentive  are 
usually  based  on  misinformation. 

Certainly  the  wondering  tribute  above  quoted 
displays  no  convincing  acquaintance  with  the 
facts,  for  it  entirely  misrepresents  the  extent  and 
value  of  Lincoln's  legal  education.  His  three 
and  twenty  years'  active  practice  in  the  courts 

245 


LINCOLN  THE  LAWYER 

supplied  him  with  the  best  of  diplomatic  training. 
It  did  not,  of  course,  familiarize  him  with  the 
etiquette  and  forms  of  international  relations, 
but  it  gave  him  a  thorough  knowledge  of  men 
and  taught  him  "to  see  behind  the  smiling  mask 
of  craft."  Much  the  same  experience  qualified 
an  Ex-Secretary  of  State  to  cope  successfully 
with  the  most  skilful  diplomats  of  Europe  during 
the  Spanish  War,  and  to  confer  high  distinction 
upon  our  modern  statesmanship. 

Again,  Lincoln's  knowledge  of  law  was 
not  confined  to  local  or  State  statutes.  He  was 
acquainted  with  the  great  principles  of  the  Eng- 
lish common  law,  and  if  he  was  not  familiar  with 
"the  waves  and  tides  of  legal  authority,"  he  was 
still  well  grounded  in  all  the  fundamentals  of  his 
profession,  and  it  would  be  absurd  to  deny  him 
recognition  as  a  lawyer  merely  because  he  "never 
had  had  a  case  in  the  United  States  Supreme 
Court."  But  even  in  this  small  particular  the 
biographer  is  at  fault,  for  Lincoln  did  have  a 
case  before  that  tribunal,  known  as  Lewis  v. 
Lewis1    (reported  in  7  Howard,  776),  and  the 

*It  is  an  interesting  fact  that  Judge  Taney,  of  Dred  Scott 
fame,  delivered  the  prevailing  opinion  of  the  court  in  this  case. 

Another  of  Lincoln's  cases  in  the  United  States  Supreme  Court  is 
Forsythe  v.  Reynolds,  14  Law.  Ed.  729.     See  also  7  How.  185. 

246 


i  CrU^O  cf£*u  Us*jjLU-  ,-*'-../.. 


<L^  fir  ^  f^y^tZ^    ^^^^ 


,.  yJLlj'^^  f„  if  /m 

in  *  -        *  ^ 

%£  ^-^  tStZ/—^    tor*-*-  ^,<—    ~  ^f6. 
From  the  collection  of  the  Hon.  Robert  T.  Lincoln 

Facsimile  of  a  part  of  Lincoln's  memorandum  brief  in  the  case  of 
Lewis  v.  Lewis  in  the  United  States  Supreme  Court. 

Mr.  Lincoln  likewise  appeared  in  United  States  v.  Chicago,  7  How. 
185.  (Information  obtained  from  Clerk  of  U.  S.  Supreme  Court  and 
Charles  W.  Moores,  Esq.,  of  the  Indiana  Bar.) 


247 


LINCOLN  THE  LAWYER 

original  of  his  brief  in  that  action  is  in  existence 
to-day 

It  would  not  be  difficult  to  quote  passages  from 
other  biographers  in  proof  of  the  fact  that  Lin- 
coln's work  as  a  lawyer  has  never  been  scrutinized 
with  any  care,  and  doubtless  the  trivial  anecdotes 
concerning  his  life  on  the  circuit  which  have  done 
duty  for  the  last  forty-five  years  have  contributed 
to  the  general  misconception  of  his  professional 
standing.  The  once  funny  story  about  "the 
pig-and-crooked-fence"  case,  "the  old-sledge-and- 
seven-up"  trial,  and  similar  time-worn  yarns, 
have  been  accepted  as  characterizing  his  legal 
experience;  and  under  such  circumstances  it  is 
not  at  all  surprising  that  serious  historians  have 
regarded  his  legal  training  as  a  negligible  quan- 
tity. Fortunately,  however,  the  records  are  ac- 
cessible, and  they  speak  very  largely  for  them- 
selves. 

In  his  twenty-three  years  at  the  bar,  Lincoln 
had  no  less  than  one  hundred  and  seventy -two 
cases  before  the  highest  court  of  Illinois,  a  record 
unsurpassed  by  his  contemporaries;  he  appeared 
before  the  United  States  circuit  and  district 
courts  with  great  frequency;  he  was  the  most  in- 

248 


LEGAL  REPUTATION 


defatigable  attendant  on  the  Eighth  Circuit  and 
tried  more  cases  than  any  other  member  of  that 
bar;  he  was  attorney  for  the  Illinois  Central 
Railroad,  the  greatest  corporation  in  the  State, 
and  one  which  doubtless  had  its  choice  of  legal 


r 


f., — 


i:  ■■; 


(3'v 


W 


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cs  i 

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it- 


**^^*^iil 


^!*  [if  V;- Until  Dec,  -  8V185  <?,  unTeae  othewv^jie  o«lsrert.         I  £    { • 


$*  "If- 


Lincoln's  pass  as  counsel  for  the  Illinois  Central  Railroad 

talent;  he  was  also  counsel  for  the  Rock  Island 
Railroad,  and  other  corporations  and  individuals1 
with  important  legal  interests  at  stake;  he  was 
sought  as  legal  arbitrator  in  the  great  corporation 

'Mr.  W.  Thomas,  a  lawyer  who  retained  Mr.  Lincoln  as 
counsel  in  an  important  litigation,  wrote  him  in  December,  1859, 
as  follows:  "Judge  Caton  has  the  Record  and  he  told  me  that  he 
had  not  decided  what  to  do  and  that  he  was  in  doubt,  etc.  I  want 
you  and  Logan  to  assist  me  in  presenting  this  case  in  such  form 
as  to  undoubt  the  Judge.  I  ought  to  and  must  gain  this  case.  If 
you  can  be  the  means  of  success  you  will  almost  bring  me  under 
obligation  to  support  the  Black  Republicans." 

(From  original  letter  in   possession   of  General   Orendorff.) 

249 


LINCOLN  THE  LAWYER 

litigations  of  Illinois1  and  he  tried  some  of  the 
most  notable  cases  recorded  in  the  courts  of  that 
State. 

Perhaps  the  most  important  cause  he  ever 
handled  was  that  known  as  The  Illinois  Central 
Railroad  v.  McLean  County,  reported  in  17  Il- 
linois, 291. 2  This  was  an  action  brought  against 
McLean  County  to  restrain  the  collection  of  cer- 
tain taxes  alleged  to  be  due  from  the  railroad, 
growing  out  of  the  fact  that  the  Illinois  legis- 
lature had  granted  the  corporation  exemption 
from  all  State  taxes  on  condition  that  it  pay 
seven  per  cent,  of  its  gross  earnings  into  the  State 
treasury.  The  county  authorities,  however, 
claimed  that  this  provision  did  not  preclude  them 
from  taxing  so  much  of  the  railroad's  property 

*The  following  telegram,  original  of  which  is  in  General  Oren- 
dorff's  collection,  speaks  for  itself: 

"Chicago,  Oct.  14,  1853. 
"To  Abraham  Lixcoln, 
"Springfield,  111. 
"Can  you  come  here  immediately  and   act  as  arbitrator  in  the 
crossing  case  between  the   Illinois  Central  and  Northern   Indiana 
R.   R.  Companies  if  you   should  be  appointed?     Answer  and  say 
yes  if  possible. 

(Signed)        "J.   F.  Joy." 

2  Lincoln  was  opposed  in  this  noted  case  by  both  his  old  law 
partners,  Judge  Logan  and  John  T.  Stuart.  The  decision  has 
been  cited  at  least  twenty-three  times  by  judges  of  other  courts. 

250 


filly.     cfv^-iX^^J     Jly?      fi^yijt^o      /T^y    Z^Kl;     0-^chrv~<s  ot^e-?  _- 
£uyfc*    ^/^n^^u     fij^fv.    £  /W/f  C^CZ^-,     £&j?ZZu' 

f^i^'flA^iUh*^    liHv'    J>UJL^CZ~J  JLe^-^J       //(_/    f-j     /i-uzn/'V*'-*— ■—o'  i^--£i*Xj 

' rfx-C      yiCC^V-,        erf*  pj2s-~^e><J     /t-£-z_^-t^T_o'U'     2-ZT     {^KkJ  /Z^"i~-£d^v 

(^y       trf  /^fio    X*£ZZZ^     /fv-r     £&>      <^~»^£^C^w     erf 

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*  As  /     •    •     ■  ~s     A 


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fh^v~^~>       ^^ZZZZ^u    (-Z\S  A"  JfcW^-.   ZW.  /&S7>,    AS&stJt 
C%-J    Osv^-j  /(jy-cA^c^t,    q^g-~-^-*aj   B-^^'~*~^a-^/'/    'jfir^£^~'   (s&r~z-~**~'j 

/  i,     /^T^      GscX?    A^-e--  £st~f*/C^*~^/l    l~~*^*s    4^tv*^   ens  jtZrHZi-ij  n-t,— 

From  General  Alfred  Oremiurflfs  collection 

Facsimile  of  the   first   page   of  Lincoln's  opinion   on  a   question 

involving  the  construction  of  the  charter  of  the  Illinois 

Central  Railroad 

251 


LINCOLN  THE  LAWYER 

as  lay  within  their  respective  jurisdictions,  and  a 
great  legal  battle  ensued.  The  issue  was  a  vital 
one  for  the  corporation,  for  the  claims  of  the 
county  threatened  it  with  bankruptcy,  and  rail- 
roading in  Illinois  was  then  in  its  experimental 
stage.  Lincoln  conducted  the  defense  with  rare 
skill  but  lost  in  the  first  court.  He  instantly  ap- 
pealed the  case  to  the  Supreme  Court,  howrever, 
and  there  it  was  twice  argued  before  a  final  de- 
cision was  recorded  in  favor  of  the  road  at  the 
end  of  two  years'  litigation. 

This  celebrated  case  was  provocative  of  an- 
other, for  the  Illinois  Central  declined  to  pay 
Lincoln's  bill  for  services  rendered  in  the  tax 
matter  without  suit,  and  he  brought  an  action  in 
the  Supreme  Court  for  $5,000  and  costs.  On  the 
trial  all  the  leaders  of  the  Illinois  bar— O.  H. 
Browning,  N.  B.  Judd,  Isaac  Arnold,  Grant 
Goodrich,  Archibald  Williams,  Judge  Norman 
Purple,  Judge  Logan  and  Robert  Blackwell — 
joined  in  a  written  statement  which  was  presented 
to  the  court,  certifying  that  Lincoln's  bill  was 
reasonable  and  the  jury  promptly  brought  in  a 
verdict  for  the  full  amount. 

It  is  interesting  to  note  Lincoln's  attitude  and 
conduct  in  this  litigation.     When  the  case  was 

252 


LEGAL  REPUTATION 

first  called  for  trial,  no  one  appeared  on  behalf  of 
the  railroad,  and  judgment  was  awarded  to  the 
plaintiff  by  default :  nevertheless  Lincoln  agreed 
that  the  case  might  be  reopened,  thus  allowing 
the  defendant  to  have  its  day  in  court  without 
penalty;  and  when  the  verdict  was  rendered, 
he  agreed  to  have  it  set  aside  because  he  had 
forgotten  to  introduce  proof  of  two  hundred 
dollars  which  had  been  given  him  as  a  retainer, 
and  the  final  verdict  was  recorded  at  forty- 
eight  hundred  dollars  and  costs.  Incidentally  it 
may  be  mentioned  that  the  services  for  which  Lin- 
coln was  obliged  to  sue  would  to-day  cost  the  cor- 
poration not  five,  but  fifty,  thousand  dollars. 

It  is  only  fair  to  state  that  within  the  last  few 
years  the  Illinois  Central  Railroad  has  issued  an 
elaborate  pamphlet  giving  its  side  of  this  case, 
and  undertaking  to  show  that  Lincoln's  bill  was 
not  certified  out  of  deference  to  the  board  of 
directors,  who  might  have  censured  the  local  offi- 
cials for  voluntarily  paying  so  large  a  charge 
against  their  company,  and  that  the  trial  was 
merely  a  formality.  Lincoln's  unusually  careful 
brief  on  the  law  and  the  facts,  however,  does  not 
bear  out  the  contention  that  the  litigation  was 
friendly,  and  there  are  other  facts  which  tend  to 
15  253 


Ulctlu'ivt*:, 

£uk&*      &***(/  Z^pU,    Cfjtj  /C~~e~^/  £j£>     OucZtZ-tS  fLM^X    cf* 

Offal/  /U-O0-»C_  ££o  4W/>  tfi-o*^—?/  /Z£j  <n€^-.ilr~*>-- 
QriCaZs  ay     (Zn~*/ {Kr%;  J*%,  (>r***x*/ fifi)  AsiZZv  a*e*-*y*~&  <»w  A/T^ufc. 


From  General  Alfred  GrendorrTs  collection 

Facsimile  of  part  of  Lincoln's  trial  brief  in  his  case  against  the 

Illinois  Central  Railroad,  showing  his  careful 

preparation  of  the  issues 

indicate  that  the  corporation's  treatment  of  its 
distinguished  counsel  was  not  as  handsome  as  the 
publication  in  which  it  now  explains  its  action.1 

1For  more  extended  reference  to  this  matter  see  Appendix. 

254 


LEGAL  REPUTATION 

While  Lincoln  was  traveling  the  circuit  with 
Judge  Davis,  he  was  retained  in  the  now  famous 
case  of  McCormick  v.  Manny,1  an  action  brought 
by  the  plaintiff,  who  owned  valuable  patents  for 
reaping-machines,  to  enjoin  the  defendant  from 
manufacturing  similar  contrivances  and  to  re- 
cover four  hundred  thousand  dollars  damages 
for  infringements.  Lincoln  was  engaged  by  a 
Mr.  Watson,  who  was  in  charge  of  the  defense, 
and  the  original  plan  was  to  have  him  conduct 
the  forensic  part  of  the  trial.  Mr.  E.  H.  Dick- 
erson,  a  well-known  patent  solicitor,  had  been  re- 
tained by  McCormick  to  make  the  technical 
argument,  and  Reverdy  Johnson,  the  noted 
Baltimore  advocate,  and  one  of  the  most  distin- 
guished lawyers  in  the  country,  was  to  oppose 
Lincoln,  who  was  naturally  very  anxious  to 
measure  himself  against  a  man  of  such  wide 
reputation.  But  Mr.  Watson  also  saw  fit  to  re- 
tain Mr.  Harding,  a  patent  solicitor,  and  Edwin 
M.  Stanton,  who  then  resided  at  Pittsburg,  but 
who  was  well  and  favorably  known  in  Cincinnati, 
where  the  trial  was  to  take  place,  and  whose  per- 
sonal influence  with  the  court  was  relied  upon  to 
offset  the  great  reputation  of  Reverdy  Johnson. 

1  Reported  in  McLean's  U.  S.  Reports,  vol.  vi,  p.  539. 

255 


e^Q/    ^A<aC<Tv~    W^/--XC/      Q^^-i^Ci^' 


tis?Cs  0U^C~a^£ZL&ui    ^  /?k*  Cp-,,£Z^s 


\ 


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/£:  ffi*~.  J.  ft.  &} 

256 


1  /5./fr^~,  jfrs* 

From  General  Alfred  Orendorff's  collection 

A  memorandum  brief  in  Lincoln's  handwriting  opposing  an  attempt 
to  break  a  will  and  showing  a  wide  range  of  authorities 

When  the  lawyers  met  in  Cincinnati,  it  was  de- 
cided in  consultation  that  only  two  counsel  should 
be  heard  on  each  side,  and  that  the  defense  should 
be  represented  by  Harding  and  Stanton.  This 
was  undoubtedly  a  bitter  disappointment  to  Lin- 
coln, who  had  carefully  prepared  himself  to 
make  the  argument,  and  who  had  never  had  an 
equal  opportunity  of  meeting  a  lawyer  of 
national  reputation.  He  accepted  the  decision 
as  gracefully  as  possible,  however,  furnishing 
Mr.  Harding  with  all  the  notes  and  other  mate- 
rial he  had  collected  for  the  argument,  and  had 
Stanton  treated  him  with  consideration,  the 
situation  would  have  been  freed  of  all  embarrass- 
ment. But  Stanton  was  utterly  devoid  of  tact, 
and  took  no  trouble  to  conceal  his  contempt  for 
his  Illinois  associate.  "Where  did  that  long- 
armed  creature  come  from,  and  what  does  he  ex- 

257 


LINCOLN  THE  LAWYER 

pect  to  do  in  this  case?"  he  inquired  of  the  other 
lawyers,  and  this  and  similarly  offensive  com- 
ments reached  Lincoln's  ears.  Discourtesy  was 
absolutely  foreign  to  his  nature,  and  it  is  no 
wonder  that  it  embittered  and  disgusted  him. 
Yet  the  greatness  of  the  man  enabled  him  to  sup- 
press his  personal  resentment,  and  when  the 
nation  had  need  of  Stanton's  undoubted  talents, 
Lincoln  laid  aside  his  own  feelings  and  tolerated 
his  overbearing  Secretary  until  he  conquered  him 
with  kindness. 

Lincoln  was  recognized  as  a  good  jury  lawyer 
long  before  he  won  any  reputation  in  other  lines 
of  legal  work.  Judge  Logan  first  noted  his  ef- 
fectiveness in  arguments  addressed  to  the  bench; 
but  despite  his  excellent  record  in  the  Supreme 
Court,  where  he  won  a  large  majority  of  his 
cases,  he  did  not  gain  any  marked  recognition  as 
a  court  lawyer  until  well  into  the  fifties.  He  was, 
however,  eminently  qualified  for  work  of  this 
character.  His  power  of  analysis,  pitiless  logic, 
and  comprehensive  mental  grasp  of  large  sub- 
jects all  combined  to  make  him  a  formidable 
opponent  in  legal  discussions  and  a  powerful 
influence  with  the  court.  He  could  split  the  ears 
of  the  groundlings  when  passionate  appeals  were 

258 


LEGAL  REPUTATION 

in  order,  but  he  was  not  naturally  emotional;  on 
the  contrary,  he  was  cool,  calm,  and  temperate  in 
word,  thought,  and  action.  Patent  cases,  with 
their  nice  problems  in  mechanics  and  engineering, 
interested  him  intensely,  and  more  than  once  he 
constructed  models  with  his  own  hands  to  aid 
him  in  trying  actions  of  this  sort  which  demanded 
close  reasoning  and  afforded  him  practical  ex- 
perience in  exact  scientific  deductions.1 

He  took  no  interest  in  the  ordinary  legal  ab- 
stractions discussed  in  court-rooms,  ano\  the 
quibbles  of  practice  bored  him;  but  when  there 
was  any  real  principle  involved  in  a  question  of 
law  he  studied  it  with  the  closest  attention,  and 
his  arguments  were  usually  so  original  that  they 
presented  the  subject  in  a  new  light,  no  matter 
how  often  it  had  been  discussed.  Thus,  when  the 
steamboats  and  the  railroads  were  struggling  for 
commercial  supremacy  in  the  Mississippi  valley, 
and  the  right  to  bridge  the  river  was  in  dispute, 
new  and  vital  questions  of  law  arose,  which  he 
handled  in  a  masterful  manner  on  behalf  of  the 
Rock  Island  Railroad.  In  one  of  these  bridge 
cases  which  he  tried  in  Chicago,  a  steamboat  had 

'It  will  be  remembered  that  Lincoln  himself  was  something  of 
an  inventor  and  obtained  a  mechanical  patent,  the  model  for 
which  is  preserved  in  Washington. 

259 


LINCOLN  THE  LAWYER 

struck  a  pier  of  the  railroad's  bridge,  and  its 
owners  brought  a  suit  for  damages  involving 
propositions  never  before  presented  to  the  courts 
and  requiring  clear  and  original  thought.  Some 
idea  of  the  bitterness  of  this  contest  may  be 
gathered  from  the  fact  that  the  railroad  charged 
the  steamboat  captain  with  being  bribed  to  run 
his  vessel  against  the  bridge  and  thus  make  a 
case  of  obstructing  navigation.  This  accusation 
was,  of  course,  angrily  denied;  but  when  the 
bridge  was  accidentally  burned,  all  the  river  craft 
gathered  at  the  spot  and  let  their  whistles  loose 
in  sheer  joy  at  the  disaster.  Under  these  circum- 
stances it  required  a  cool  head  and  an  even  temper 
to  carry  the  day,  and  Lincoln  was  equal  to  the 
occasion.  His  argument,  one  of  his  few  legal 
speeches  which  have  been  preserved,  was  reported 
by  the  Hon.  Robert  Hitt,  and  it  demonstrates 
Lincoln's  conspicuous  ability  in  presenting  close 
questions  of  law,  and  indicates  his  notable  de- 
velopment as  a  lawyer.1 


iThe  writer  is  indebted  to  the  courtesy  of  the  editors  of  the 
Chicago  "Tribune"  for  a  full  copy  of  Mr.  Hitt's  report  of  this 
speech.  The  case  was  entitled  Hurd  et  «/.  v.  Railroad  Bridge 
Co.,  and  it  was  tried  in  the  United  States  Circuit  Court,  Hon. 
John  McLean  presiding,  September,  1857. 

Colonel  Peter  A.  Dey,  one  of  the  engineers  of  the  old  Mississippi 
and  Missouri  Railroad,  now  living  in  Iowa,  was  jjresent  at  this 
trial,  and  advises  the  writer  that  "Mr.  Lincoln's  examination  of 

260 


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«J 

LEGAL   REPUTATION 

Another  notable  civil  cause  in  which  he  was  en- 
gaged was  known  as  the  "sand-bar  case,"1  in- 
volving certain  accretions  to  the  shore  of  Lake 
Michigan  of  vast  importance  to  the  Illinois 
Central  Railroad,  and  his  discussion  of  the  law 
on  behalf  of  his  client  displayed  high  ability  and 
resourcefulness. 

Much  of  Lincoln's  effectiveness  in  this  class  of 
work  was  due  to  his  mental  independence.  Pre- 
cedents did  not  make  him  over-confident,  and 
they  never  balked  him.  Back  of  the  recorded 
adjudication  he  sought  the  reason,  and  if  it  did 
not  satisfy  his  mind,  he  would  not  accept  it.  Very 
few  lawyers  possess  sufficient  independence  and 
originality  for  research  of  this  character,  and  the 
average  brief,  though  it  often  displays  great  in- 
genuity   in    reconciling    divergent    authorities, 

v/itnesses  was  very  full  and  no  point  escaped  his  notice.  I  thought 
he  carried  it  almost  to  prolixity,  but  when  he  came  to  his  argument 
I  changed  my  opinion.  He  went  over  all  the  details  with  great 
minuteness,  until  court,  jury,  and  spectators  were  wrought  up  to 
the  crucial  point.  Then  drawing  himself  up  to  his  full  height,  he 
delivered  a  peroration  that  thrilled  the  court-room  and,  to  the 
minds  of  most  persons,  settled  the  case." 

iThis  case,  entitled  Johnson  v.  Jones  et  ah,  was  tried  in  the 
United  States  Circuit  Court  before  Judge  Drummond  and  a  jury, 
in  Chicago,  March  19,  1860  (about  two  months  before  Lincoln's 
nomination  for  the  Presidency),  and  it  is  the  last  cause  of  im- 
portance in  which  he  appeared.  Messrs.  Buckner  S.  Morris,  John 
A.  Wills,  and  Isaac  N.  Arnold  represented  the  plaintiff,  and  the 
defendants'  counsel  were  Abraham  Lincoln,  Samuel  L.  Fuller, 
Van  H.  Higgins,  and  John  Van  Annan. 

261 


LINCOLN  THE  LAWYER 

rarely  indicates  any  really  creative  thought. 
Legal  argument  calls  for  a  higher  order  of  ability 
than  jury  work,  and  it  developed  Lincoln's  talents 
for  logical  reasoning  until  it  perfected  him  to 
meet  and  refute  the  most  ingenious  debater  of 
his,  or  possibly  of  any  other,  day. 


262 


XXIII 


LAW  IN  THE  DEBATE 


LINCOLN  had  been  practising  on  the  Eighth 
■A  Circuit  for  five  years  when  the  bill  to  repeal 
the  Missouri  Compromise  was  introduced  in  Con- 
gress (1854)  and  during  that  time  he  had  devoted 
himself  exclusively  to  the  duties  of  his  profession. 
It  is  not  possible  to  obtain  an  accurate  record  of 
the  number  of  cases  he  tried  during  those  five 
years,  for  his  name  was  not  always  entered  on  the 
dockets  when  he  acted  as  counsel  for  other  law- 
yers, but  we  know  that  he  argued  at  least  forty 
appeals  in  the  Supreme  Court  within  that  period, 
and  the  records  of  the  various  county-seats  and 
the  testimony  of  his  contemporaries  go  far  to  dem- 
onstrate that  no  other  lawyer  on  the  circuit,  and 
probably  none  in  the  State,  had  anything  like  the 
number  and  variety  of  cases  which  he  conducted 
between  1849  and  1854.  It  was  during  the  last- 
named  year  that  the  bill  was  introduced  author- 
izing Congress  to  organize  Kansas  and  Nebraska 

263 


LINCOLN  THE  LAWYER 

as  Territories,  and  to  this  bill  an  amendment  was 
added  repealing  the  Missouri  Compromise  Act 
by  which  slavery  was  prohibited  in  the  proposed 
new  Territories.  Lincoln  was  attending  court  on 
the  circuit  when  this  news  reached  him,  and  Judge 
Dickey,  one  of  his  fellow-practitioners,  who  was 
sharing  his  room  in  the  local  tavern  at  the  time, 
reports  that  Lincoln  sat  on  the  edge  of  his  bed 
and  discussed  the  political  situation  far  into  the 
night.  At  last  Dickey  fell  asleep,  but  when  he 
awoke  in  the  morning,  Lincoln  was  sitting  up  in 
bed,  deeply  absorbed  in  thought.  "I  tell  you, 
Dickey,"  he  observed,  as  though  continuing  the 
argument  of  the  previous  evening,  "this  nation 
cannot  exist  half -slave  and  half -free." 

This  is  probably  the  first  time  Lincoln  ever 
used  the  phrase  which  was  destined  to  become  so 
famous  in  later  years,  and  shortly  afterward  he 
made  his  first  direct  answer  to  one  of  Douglas's 
speeches  supporting  the  Missouri  Compromise 
repeal,  and  the  great  duel  of  debate  began.  To 
say  that  the  general  public  was  surprised  by  the 
force  and  effectiveness  of  Lincoln's  attack  is  to 
put  the  matter  very  mildly.  It  was  fairly  aston- 
ished, and  the  most  amazed  man  in  the  community 
was  probably  Judge  Douglas  himself.    He  had 

264. 


m 


Judge  Stephen   A.  Douglas 


LAW  IN  THE  DEBATE 

been  absorbed  with  his  duties  in  the  United 
States  Senate  for  the  past  seven  years,  and 
Lincoln,  hard  at  work  with  court  duties,  had  vir- 
tually disappeared  from  his  view.  He  had  known 
him  as  a  local  practitioner  and  effective  stump- 
speaker  and  country  attorney,  but  he  was  not 
prepared  for  the  logical,  lawyer-like  arraignment 
to  which  he  found  himself  subjected,  and  after 
two  more  encounters  with  this  new  antagonist,  he 
called  a  truce,  proposing  that  neither  he  nor  Lin- 
coln should  make  any  more  speeches  during  the 
rest  of  the  fall  campaign.  To  this  Lincoln  as- 
sented, returning  to  his  law  practice;  and  thus 
ended  the  first  skirmish  of  what  was  destined  to 
be  one  of  the  most  notable  debates  of  history. 

Lincoln  kept  steadily  at  his  court  work  until 
the  fall  of  that  year,  when  he  decided  that  to  do 
effective  service  in  the  campaign  against  the  ex- 
tension of  slavery  he  would  have  to  reenter 
politics,  and,  being  nominated  for  the  Illinois 
Assembly,  he  made  the  necessary  canvass,  and 
was  elected  by  a  great  majority  in  November, 
1854.  He  had  no  sooner  taken  office,  however, 
than  he  resigned  to  become  a  candidate  for  the 
United  States  senatorship;  but  his  selection  was 
frustrated  by   a   combination   among  the   local 

267 


LINCOLN  THE  LAWYER 

politicians,  and  Lyman  Trumbull,  another  mem- 
ber of  the  bar,  obtained  a  majority  of  the 
votes. 

This  was  in  February,  1855,  and  Lincoln  im- 
mediately resumed  his  duties  on  the  circuit.  Dur- 
ing this  and  the  following  year  he  argued  and 
won  the  McLean  County  case  for  the  Illinois 
Central,  prepared  and  appeared  in  the  McCor- 
mick  reaper  action,  argued  no  less  than  thirteen 
appeals  in  the  court  of  last  resort,  and  otherwise 
spent  the  most  active  year  and  a  half  in  his  entire 
professional  career.  Under  this  daily  training 
in  the  courts  his  immense  latent  powers  steadily 
developed,  his  mind  expanded  and  his  confidence 
increased,  and  it  was  undoubtedly  the  leader  of 
the  Illinois  bar  who  addressed  the  convention  at 
Bloomington  on  May  29,  1856.  The  speech 
which  he  delivered  on  that  occasion  was  lost  to 
the  world  because  he  held  the  audience  so  spell- 
bound that  even  the  reporters  forgot  their  duties 
and  neglected  to  take  notes ;  but  those  who  heard 
it  srjread  the  tidings  that  a  new  champion  had 
entered  the  political  arena  equipped  to  do  battle 
with  all  comers.  But  Lincoln  did  not  feel  him- 
self fully  prepared,  and  when  the  first  Repub- 
lican convention  was  held  at  Philadelphia,  a  few 

268 


LAW  IN  THE  DEBATE 

weeks  later,  the  news  that  he  had  received  one 
hundred  and  ten  votes  for  Vice-President  reached 
him  while  he  was  engaged  in  trial  work  at  Ur- 
bana.  "It  can't  be  me  they  are  voting  for,"  was 
his  smiling  comment;  "there  's  another  great  man 
of  the  same  name  somewhere  in  Massachusetts. 
It  's  probably  him." 

Important  events  followed  in  quick  succession, 
but  Lincoln  stuck  steadily  to  his  court  duties. 
Fremont  and  Dayton  were  nominated  by  the 
Republicans  against  Buchanan  and  Breckin- 
ridge; but  except  for  making  a  number  of 
speeches  for  Fremont  in  the  fall,  Lincoln's  pro- 
fessional life  went  on  uninterruptedly.  Then 
Buchanan  was  elected,  and  shortly  after  his  in- 
auguration the  Supreme  Court  announced  its 
decision  in  the  Dred  Scott  case,  which,  instead  of 
smothering  the  fires  of  anti-slavery  agitation, 
added  fuel  to  the  flames  which  burst  out  in  every 
part  of  the  country. 

Meanwhile  Lincoln  continued  active  in  the 
courts,  gaining  greater  reputation  with  every 
term,  and  rapidly  rounding  into  shape.  From 
1856  to  1858  his  name  appears  fifteen  times  in 
the  Illinois  appellate  reports,  and  within  the 
same    period    he    tried    the    celebrated    Wyant 

269 


LINCOLN  THE  LAWYER 

murder  case  in  Bloomington ;  his  leadership  of 
the  bar  was  everywhere  acknowledged,  and  he 
was  in  the  midst  of  the  most  active  professional 
duties  when  he  was  nominated  by  the  Illinois 
Republicans  to  succeed  Douglas,  whose  term  in 
the  Senate  was  just  expiring.  As  on  other  occa- 
sions when  he  stood  confronted  by  opportunity, 
the  man  responded  to  the  power  within  him,  and 
he  accepted  the  great  task  which  lay  before  him 
with  calmness  and  quiet  confidence.  His  op- 
ponent had  the  prestige  of  eleven  years'  senatorial 
experience,  he  was  recognized  as  one  of  the  best 
debaters  in  the  upper  house,  and  acknowledged 
as  a  national  leader  of  marvelous  personal  charm 
— the  ideal  of  his  home  constituents,  and  the 
probable  Presidential  candidate  of  the  national 
Democracy.  Lincoln  did  not  underestimate  his 
abilities;  but  he  had  taken  his  measure  in  their 
previous  tilt,  and  he  did  not  hesitate  to  challenge 
him  to  debate  the  issues  of  the  campaign.  "Mr. 
Lincoln  is  a  very  amiable  gentleman,"  was 
Douglas's  first  reply;  but  later  he  yielded  to  the 
pressure  of  his  friends,  and  accepted  the  chal- 
lenge. 

From  the  moment  of  collision  it  was  evident 
that  a  great  struggle  was  imminent,  and,  despite 

270 


LAW  IN  THE  DEBATE 

the  applause  and  flattery  of  his  supporters, 
Douglas  must  have  known  in  his  heart  of  hearts 
that  he  had  at  last  met  his  match. 

Brilliant  and  resourceful  as  he  was  in  popular 
appeal,  his  dexterity  with  the  weapons  of  debate 
was  more  than  offset  by  Lincoln's  better  know- 
ledge of  law  and  his  greater  familiarity  with  legal 
argument,  and  the  contest  hinged  largely  upon 
the  effect  of  the  Dred  Scott  case  as  decided  by 
the  Supreme  Court. 

Dred  Scott,  it  will  be  remembered,  was  a  negro 
whose  Missouri  master,  after  a  short  residence  in 
Illinois,  had  moved  into  what  was  then  Wisconsin 
Territory  (now  Minnesota)  with  the  slave,  and, 
after  living  there  for  a  time,  had  returned  to 
Missouri  and  sold  him. 

Scott  thereupon  sued  in  a  Missouri  court  to 
establish  his  freedom,  claiming  that  his  residence 
in  the  free  state  of  Illinois  and  the  free  Territory 
of  Wisconsin  had  emancipated  him.  The  first 
local  court  sustained  his  contention,  but  the  de- 
cision was  reversed  on  appeal.  He  was  then  sold 
to  a  man  in  New  York,  and  began  another  suit  in 
the  federal  courts  of  St.  Louis,  which  promptly 
ruled  against  him. 

The  case  was  then  appealed  to  the  United 
16  271 


LINCOLN  THE  LAWYER 

States  Supreme  Court  at  Washington,  where  the 
plaintiff  was  represented  by  Montgomery  Blair 
and  George  Ticknor  Curtis,  and  the  defendant 
by  Reverdy  Johnson,  whom  Lincoln  had  hoped 
to  meet  in  the  McCormick  case;  and  after  two 
elaborate  hearings  Scott  was  declared  a  slave  by 
a  divided  vote  of  the  judges,  two  of  whom  wrote 
dissenting  opinions.  This  decision  of  the  highest 
tribunal  in  the  country  was  expected  to  settle  the 
slavery  issue,  for  it  decreed  protection  to  slave- 
owners in  the  enjoyment  of  their  property  wher- 
ever situated  as  a  constitutional  right. 

Lincoln,  however,  promptly  challenged  the 
authority  of  any  court  to  dispose  of  a  great 
national  issue  such  as  the  slavery  question,  and 
early  in  the  debate  with  Douglas  he  forced  the 
discussion  of  this  subject  to  the  fore. 

"In  the  field  of  argumentative  statement,  Mr. 
Webster  at  the  time  of  his  death  had  no  rival  in 
America,"  says  Mr.  Boutwell,  "but  he  has  left 
nothing  more  exact,  explicit,  and  convincing  than 
this  extract  from  Lincoln's  first  speech  in  the 
great  debate:  'If  any  man  choose  to  enslave  an- 
other, no  third  man  shall  be  allowed  to  object,' 
which  embodies  the  substance  of  the  opinion  of 
the  Supreme  Court  of  the  United  States  in  the 
Dred  Scott  case." 

272 


LAW  IN  THE  DEBATE 

Douglas  instantly  responded  by  declaring  that 
those  who  resisted  the  finding  of  the  court  were 
traitors  fomenting  revolution,  and  intimated 
that  his  adversary's  duty  as  a  lawyer  was  to  up- 
hold the  law  and  discountenance  resistance  to  its 
decrees.  But  Lincoln's  reply  was  so  calm,  fair, 
dignified,  and  professionally  correct  that  it  not 
only  put  his  accuser  completely  in  the  wrong,  but 
placed  his  opposition  on  a  high  and  perfectly 
legal  plane. 

"We  believe  as  much  as  Judge  Douglas  (per- 
haps more)  in  obedience  to  and  respect  for  the 
judicial  department  of  government"  he  asserted. 
"But  we  think  the  Dred  Scott  decision  is  er- 
roneous. We  know  the  court  that  made  it  has 
often  overruled  its  own  decisions  and  we  shall  do 
what  we  can  to  have  it  overrule  this.  We  offer 
no  resistance  to  it.  If  this  important  decision  had 
been  made  by  the  unanimous  concurrence  of  the 
judges,  and  without  any  apparent  partizan  bias 
and  in  accordance  with  legal  public  expectation 
and  the  steady  practice  of  the  departments 
throughout  our  history,  and  had  been  in  no  part 
based  on  assumed  historical  facts  which  are  not 
really  true;  or  if,  wanting  in  some  of  these,  it  had 
been  before  the  court  more  than  once,  and  had 
there  been  affirmed  and  reaffirmed  through  a 

273 


LINCOLN  THE  LAWYER 

course  of  years,  it  then  might  be,  perhaps  would 
be,  factious,  nay,  even  revolutionary,  not  to  ac- 
quiesce in  it  as  a  precedent.  But  when,  as  is  true, 
we  find  it  wanting  in  all  these  claims  to  the  public 
confidence,  it  is  not  resistance,  it  is  not  factious, 
it  is  not  even  disrespectful,  to  treat  it  as  not 
having  yet  quite  established  a  settled  doctrine  for 
the  country." 

If  Douglas  had  been  permitted  to  choose  his 
weapons  he  would  doubtless  have  avoided  all  legal 
controversy  with  his  trained  opponent;  but  the 
situation  did  not  admit  of  silence,  and  he  was 
forced  to  discuss  the  meaning  and  effect  of  the 
Supreme  Court's  decision  with  a  master  of  logic 
well  versed  in  the  maxims  and  principles  of  con- 
stitutional law.  The  effect  of  this  was  speedily 
apparent.  At  the  outset  of  the  campaign  his  vic- 
tory over  Lincoln  had  seemed  an  absolute  cer- 
tainty, but,  as  time  wore  on,  the  result  began  to 
be  questioned,  and  each  meeting  with  his  rival  left 
the  outcome  in  greater  doubt.  Finally  he  decided 
to  cany  the  war  into  the  enemy's  country  and  in 
an  evil  moment  he  propounded  a  series  of  ques- 
tions intended  to  confuse  and  embarrass  his  ad- 
versary. Had  he  remembered  Lincoln's  searching 
interpellation  of  the  Polk  administration  in  the 

274 


LAW  IN  THE  DEBATE 

"Spot  Resolutions,"  he  might  have  hesitated  in 
his  attempt  to  bait  the  ablest  cross-examiner  in 
the  State ;  but  apparently  he  did  not  perceive  the 
opening  which  he  gave  to  his  opponent. 

"1  will  answer  these  interrogatories'3  an- 
nounced Lincoln,  when  he  received  the  seven 
questions  intended  to  entrap  him,  "upon  condition 
that  he  [Judge  Douglas]  will  answer  questions 
from  me  not  exceeding  the  same  number.  I  give 
him  an  opportunity  to  respond" 

No  reply  came  from  his  adversary,  and  the 
vast  audience  at  Freeport  waited  the  outcome 
with  a  breathless  interest  which  the  keen  jury 
lawyer  instantly  interpreted. 

"The  judge  remains  silent/'  continued  Lin- 
coln, impressively.  "I  now  say  I  will  answer  his 
interrogatories  whether  he  answers  mine  or  not; 
but  after  I  have  done  so,  I  shall  propound  mine 
to  him." 

Another  breathless  pause  greeted  this  resistless 
challenge  and  then  the  speaker  began  reading 
Douglas's  questions.  No  lawyer  who  examines 
them  can  fail  to  see  that  they  were  so  loosely 
worded  as  to  admit  of  a  negative  answer  in  every 
instance,  rendering  them  utterly  ineffective,  and 
Lincoln  disposed  of  them  in  this  manner.    But 

275 


LINCOLN  THE  LAWYER 

having  shown  that  he  could  in  this  way  techni- 
cally defeat  his  opponent's  object,  he  instantly 
waived  the  form  of  the  questions  and  replied  to 
them  one  after  the  other  as  fairly  and  frankly 
as  any  one  could  desire;  and,  having  done  so,  he 
propounded  four  counter-questions  which  proved 
to  be  the  most  fatal  "cross-examination"  or 
counter-questioning  in  history. 

All  the  inquiries  were  adroit,  but  it  was  the 
second  which  displayed  Lincoln  as  a  master  of 
interrogation. 

"Can  the  people  of  the  United  States  Terri- 
tory" he  asked,  "in  any  lawful  way,  against  the 
wish  of  any  citizen  of  the  United  States,  exclude 
slavery  from  its  limits  prior  to  the  formation  of  a 
State  constitution?" 

The  answer  to  this  question  required  Douglas 
to  interpret  the  Dred  Scott  decision.  If  he 
replied  in  the  negative,  the  people  of  Illinois 
would  repudiate  him,  because  they  would  not 
countenance  the  idea  that  the  mischief  had  been 
done  and  that  slavery  had  already  been  forced 
upon  the  Territories.  If,  on  the  other  hand,  he 
answered  that  the  Territories  were  still  free  to 
choose  or  reject  slavery,  he  would  have  to  explain 
away  the  Dred  Scott  decision,  which  guaranteed 

276 


LAW  IN  THE  DEBATE 

protection  to  slave  property  in  the  Territories  as 
a  constitutional  right;  and  this  would  displease 
the  Southern  Democracy  which  was  then  listen- 
ing to  his  every  word  to  determine  whether  he  was 
or  was  not  a  safe  Presidential  candidate. 

The  Republican  politicians  of  Illinois  were  not 
so  astute  as  Douglas;  still  they  foresaw  that  he 
would  give  a  plausible  answer  to  the  question 
which  would  satisfy  the  local  voters,  and  they 
begged  Lincoln  to  withdraw  the  inquiry.  But 
the  far-sighted  lawyer  who  framed  it  was  deaf  to 
their  entreaties.  "Then  you  will  never  be  sen- 
ator!" was  the  angry  warning  of  one  of  his  ad- 
visers. "If  Douglas  answers,"  responded  Lin- 
coln, calmly,  "he  will  never  be  President." 

The  fatal  question  was  therefore  left  as  Lin- 
coln had  phrased  it,  and  at  the  first  opportunity 
Douglas  answered  by  stating  that  the  Territories 
were  still  free  agents.  They  could  exclude 
slavery  despite  the  Dred  Scott  decision,  he  ex- 
plained, simply  by  adopting  local  police  regula- 
tions so  hostile  to  slavery  that  no  slave-owner 
could  enjoy  his  property  within  their  boundaries. 

As  soon  as  he  had  uttered  it,  Douglas  must 
have  seen  that  his  answer  involved  a  gross  blunder 
in  law;  but  if  he  had  any  doubt  on  the  matter, 

277 


LINCOLN  THE  LAWYER 

Lincoln  speedily  dispelled  it.  How  could  the 
constitutional  right  of  peaceful  enjoyment  of 
slave  property  guaranteed  in  the  Dred  Scott  case 
be  canceled  by  police  or  any  other  hostile  legisla- 
tion? he  demanded.  Any  such  ordinance  or  law 
would  be  contrary  to  the  constitution  and  ab- 
solutely void.  Either  Judge  Douglas's  answer 
or  the  doctrine  of  the  Supreme  Court  was  bad 
law,  for  the  one  was  inconsistent  with  the  other. 

But,  illogical  as  it  was,  this  fallacy  caught  the 
popular  fancy,  and  Douglas,  seeing  that  it  sat- 
isfied his  constituents,  held  to  it  and  was  elected  to 
the  Senate.  Nevertheless,  as  Lincoln  anticipated, 
his  blunder  in  law  cost  him  the  Presidency,  and 
not  long  afterward  Judah  Benjamin,  one  of  the 
most  ardent  and  able  representatives  of  the 
South,  arraigned  him  as  a  renegade  and  traitor. 

"We  accuse  him  for  this,"  he  thundered:  "that 
having  bargained  with  us  upon  a  point  upon 
which  we  were  at  issue,  that  it  should  be  con- 
sidered a  judicial  point;  that  he  would  abide  the 
decision;  that  he  would  act  under  the  decision, 
and  consider  it  a  doctrine  of  the  party;  that 
having  said  that  to  us  here  in  the  Senate,  he  went 
home,  and,  under  the  stress  of  a  local  election,  his 
knees  gave  way ;  his  whole  person  trembled.    His 

278 


LAW  IN  THE  DEBATE 

adversary  stood  upon  principle  and  was  beaten; 
and  lo,  he  is  the  candidate  of  a  mighty  party  for 
the  Presidency  of  the  United  States.  The  sen- 
ator from  Illinois  faltered.  He  got  the  prize  for 
which  he  faltered;  but  the  grand  prize  of  his 
ambition  to-day  slips  from  his  grasp  because  of 
his  faltering  in  his  former  contest,  and  his  success 
in  the  canvass  for  the  Senate,  purchased  for  an 
ignoble  price,  has  cost  him  the  loss  of  the  Presi- 
dency of  the  United  States!" 

Thus  two  years  after  Lincoln's  question  was 
put  and  answered  Douglas  was  repudiated  by  his 
Southern  friends,  the  Democratic  party  was  split, 
three  candidates  instead  of  one  were  nominated 
against  the  Republicans,  and  the  lawyer  whose 
skill  had  precipitated  this  result  was  trium- 
phantly elected  at  the  polls. 


279 


XXIV 

AS  CANDIDATE 

LINCOLN  had  very  little  time  for  the  practice 
^  of  the  law  during  his  campaign  against 
Senator  Douglas,  but  he  did  not,  as  is  generally 
supposed,  wholly  abandon  his  professional  duties. 
In  the  midst  of  the  debates  he  tried  the  Arm- 
strong murder  case,  his  most  celebrated  cause, 
and  the  moment  the  election  was  decided  he 
resumed  his  attendance  on  the  circuit.  It  was 
while  he  was  engaged  in  this  work  that  his  friend 
Jesse  Fell,  an  Illinois  politician,  met  him  in  the 
streets  of  Bloomington,  and,  drawing  him  into  a 
deserted  law  office,  seriously  suggested  that  he 
become  a  candidate  for  the  Presidential  nomina- 
tion. Mr.  Fell  had  been  traveling  in  the  East 
during  the  great  debates,  and  had  been  impressed 
by  the  repeated  inquiries  addressed  to  him  con- 
cerning the  personal  history  of  the  man  who  was 
making  such  a  sturdy  fight  against  the  famous 
Illinois  senator,  and  he  had  reached  the  conclusion 

280 


AS  CANDIDATE 

that  Lincoln  was  a  Presidential  possibility.  No 
other  lawyer  in  the  country  had  dissected  the 
Dred  Scott  decision  as  he  had  dissected  it,  either 
from  a  legal  or  from  a  popular  standpoint,  and 
of  the  thousands  who  were  discussing  the  slavery 
question  he  was  the  only  one  whose  argument 
sounded  fresh  and  convincing. 


From  Maj,  Wm.  H.  Lambert's  collection. 

Chair  used  by  Lincoln  in  his  law  office. 
(Destroyed  by  fire  June  4,  1906.) 

But  Lincoln  was  not  then  prepared  to  take 
Fell's  suggestion  seriously,  and  he  declined  for 
the  time  being  to  furnish  the  sketch  of  his  life 
which  his  friend  requested,  and  it  was  not  until 
some  months  later  that  he  was  persuaded  to  re- 
consider the  matter.  On  February  27,  1860,  he 
delivered  the  remarkable  address  at  Cooper 
Union,  New  York,  which  was  instantly  recog- 

281 


LINCOLN  THE  LAWYER 

nized  as  the  ablest  discussion  of  the  slavery  issues 
ever  undertaken  by  a  public  speaker,  and  his  na- 
tional reputation  dates  from  that  day.  The  speech 
which  he  delivered  on  that  occasion  was  neither 
oratorical  nor  partisan.  It  was  a  calm,  dispas- 
sionate, lawyer-like  argument,  keyed  to  the  high 
intelligence  of  the  audience  to  which  it  was  ad- 
dressed, and  it  exhibited  Lincoln  as  a  master  of 
all  the  historical  and  legal  data  involved  in  the 
subject.  No  one  but  a  fully  equipped  lawyer 
experienced  in  the  handling  of  facts,  and  one 
trained  to  make  their  legal  bearing  clear  to  the 
layman  by  logical  analysis,  could  possibly  have 
held  his  critical  hearers  as  Lincoln  held  them,  and 
his  triumph  was  the  direct  result  of  three-and- 
twenty  years  of  service  in  the  courts. 

After  the  Cooper  Union  address,  Lincoln 
made  a  short  speech-making  tour  in  New  Eng- 
land; but  except  for  this  work  and  two  speeches 
in  Ohio  toward  the  close  of  the  previous  year,  he 
was  engaged  as  usual  in  his  law  practice,  and 
1859  was  perhaps  the  busiest  of  his  professional 
years.  It  was  within  those  twelve  months  that  he 
tried  and  won  the  famous  Harrison  murder  case, 
and  during  the  sessions  of  the  Supreme  Court  he 
appeared  in  no  less  than  ten  appeals.     For  the 

282 


Maj.  Gen.  John  M.  Palmer 


AS  CANDIDATE 

first  half  of  the  succeeding-  year  he  was  ap- 
parently equally  mindful  of  his  law  business,  and 
shortly  before  the  Chicago  convention  at  which 
he  was  nominated  he  argued  one  of  his  best- 
known  cases,  popularly  termed  the  "sand-bar" 
case,  in  the  United  States  Circuit  Court.  This, 
however,  was  the  last  case  he  tried.1 

Two  months  later  the  Eighth  Circuit  was  well 
and  ably  represented  at  Chicago  by  Judge  Davis, 
Leonard  Swett,  Judge  Logan,  John  M.  Palmer, 
Richard  Oglesby,  Mr.  Herndon,  Judge  Weldon, 
and  others.  These  men  had  gone  to  the  conven- 
tion determined  to  procure  Lincoln's  nomination, 
and  they  were  well  qualified  for  the  work  at  hand. 

"The  lawyers  of  our  circuit,"  wrote  Leonard 
Swett,  "went  there  determined  to  leave  no  stone 
unturned ;  and  really  they  and  some  of  our  State 
officers  and  a  half-dozen  men  from  various  por- 
tions of  the  State  were  the  only  tireless,  sleepless, 
unwavering,  and  ever-vigilant  friends  he  had." 

Circumstances  aided  this  little  group  of  law- 
yers, but  they  were  alive  to  every  opportunity, 
and,  as  ex- Vice-President  Stevenson  pointed  out 
to  the  writer,  it  was  Lincoln's  acquaintance  with 
certain  of  the  Indiana  delegates  whom  he  had  met 

'See  foot-note,  page  261. 

285 


LINCOLN  THE  LAWYER 

while  traveling  the  circuit  counties  bordering  on 
that  State,  which  proved  the  opening  wedge. 
Pennsylvania  was  the  next  point  of  attack,  but 
when  Lincoln  heard  talk  of  a  bargain  being  made 
with  Simon  Cameron's  followers,  he  sent  positive 
instructions  that  no  promises  should  be  made  in 
his  name  and  that  he  would  be  bound  by  none. 
His  zealous  friends  did,  however,  enter  into  an 
agreement  with  the  Pennsylvanians  which  was 
destined  to  cause  their  principal  much  embarrass- 
ment at  a  later  date,  when  he  found  himself  vir- 
tually committed  to  appoint  Simon  Cameron  to 
a  cabinet  position. 

When  the  moment  for  nominations  arrived,  it 
was  N.  B.  Judd,  one  of  the  attornej^s  for  the  Rock 
Island  Railroad,  and  Lincoln's  constant  legal 
associate,  who  placed  his  name  before  the  con- 
vention, and  when  Caleb  Smith,  another  lawyer, 
seconded  it  on  behalf  of  Indiana  such  a  roar  of 
approval  burst  from  the  Illinois  delegation  as 
was  never  before  heard  in  any  convention  hall. 
"Lincoln  has  it  by  sound  now;  let  us  ballot!" 
shouted  Judge  Logan  as  soon  as  he  could  make 
himself  heard,  and  on  the  third  ballot  the  leader 
of  the  Illinois  bar  and  the  idol  of  the  Eighth  Cir- 
cuit was  declared  the  choice  of  the  convention. 

286 


N.   B.   Judd 


Attorney  for  the  Rock  Island  Railroad  who  nominated  Lincoln 
for  the  Presidency 


AS  CANDIDATE 

It  would  perhaps  be  too  much  to  claim  that 
Lincoln's  strategic  caution  and  masterly  silence 
during  the  eventful  months  which  followed  were 
entirely  due  to  his  professional  habit,  but  it  can- 
not be  doubted  that  almost  every  legal  experience 
demonstrates  the  wisdom  of  keeping  one's  own 


From  Maj.  Wm.  H.  Lambert's  collection 

Inkstand  used  by  Lincoln  in  his  law  office 

counsel,  and  the  fate  of  the  talkative  witness  who 
volunteers  testimony  after  his  examination  is 
finished  was  probably  not  lost  upon  the  Presi- 
dential candidate.  He  had  given  his  testimony 
in  full,  his  record  was  open  to  all  who  would  read 
it,  and  despite  deep  provocation  and  the  urging 

289 


LINCOLN  THE  LAWYER 

of  many  friendly  advisers,  he  took  no  part  in  the 
fierce  campaign  which  resulted  in  his  election. 


From  Maj.  Wra.  H.  Lambert's  collection 

Bookcase  and  table  used  by  Lincoln  in  his  law  office 
(Destroyed  by  fire  June  4,  1906) 

Even  after  the  contest  was  over  and  he  was  im- 
plored to  say  something  to  reassure  the  seceding 
South,  he  resisted  the  temptation  to  interfere  with 
his  predecessor's  administration,  knowing  full 
well  that  his  advice  would  be  disregarded  and 
that  it  was  hopeless  to  try  to  save  the  situation 

290 


AS  CANDIDATE 

with  words  alone.  It  reminded  him,  he  said,  of 
one  of  his  experiences  on  the  circuit  when  he  saw 
a  lawyer  making  frantic  signals  to  head  off  an 
associate  who  was  making  blundering  admissions 
to  the  jury,  and  who  continued  utterly  oblivious 
to  the  efforts  which  were  being  made  to  check  his 
ruinous  work.  "Now,  that 's  the  way  with  Bu- 
chanan and  me, "  was  his  only  comment.  ' '  He 's 
giving  the  case  away  and  I  can't  stop  him." 

As  the  hour  for  action  drew  near  and  Lincoln 
was  on  the  eve  of  departure  for  Washington,  he 
visited  his  law  office  to  attend  to  some  business 
matters. 

"After  all  these  things  were  disposed  of," 
relates  Mr.  Herndon,  "he  crossed  to  the  opposite 
side  of  the  room  and  threw  himself  down  on  the 
old  office  sofa,  which  after  many  years  of  service 
had  been  moved  against  the  wall  for  support.  He 
lay  there  for  some  moments,  his  face  toward  the 
ceiling,  without  either  of  us  speaking.  .  .  . 
He  then  recalled  some  incidents  of  his  early  prac- 
tice and  took  great  pleasure  in  delineating  the 
ludicrous  features  of  many  a  lawsuit  on  the  cir- 
cuit. .  .  .  Then  he  gathered  up  a  bundle  of 
books  and  papers  he  wished  to  take  with  him,  and 
started  to  go,  but  before  leaving  he  made  the 

17  291 


LINCOLN  THE  LAWYER 

strange  request  that  the  sign-board  which  swung 
on  its  rusty  hinges  at  the  foot  of  the  stairway 
should  remain.  'Let  it  hang  there  undisturbed,' 
he  said,  with  a  significant  lowering  of  his  voice. 
'Give  our  clients  to  understand  that  the  election 
of  a  President  makes  no  difference  in  the  firm. 
.  .  .  If  I  live  I  'm  coming  back  some  time,  and 
then  we  '11  go  right  on  practising  law  as  if  nothing 
had  ever  happened.'  .  .  .  He  lingered  for  a 
moment  as  if  to  take  a  last  look  at  the  old 
quarters,  and  then  passed  into  the  narrow  hall- 
way." 

Mr.  Herndon  does  not  state  whether  or  not  the 
sign  remained  as  his  partner  requested,  but  it  is 
certain  that  to-daj^  there  is  nothing  to  mark 
or  honor  any  of  the  office  sites  in  the  city  of 
Springfield,  where  Lincoln  the  lawyer  practised 
during  almost  a  quarter  of  a  century.1 

'A  part  of  Mr.  Lincoln's  law  library  of  1861  is  still  in  existence. 
In  the  Lambert  collection:  Illinois  Conveyancer;  Angell  on  Limita- 
tions. In  the  Vanuxem- Potter  collection:  A  volume  containing  the 
Declaration  of  Independence,  etc.;  Chitty's  Pleadings  and  Parties; 
Stephen's  Commentaries  on  the  Laws  of  England;  Greenleaf  on 
Evidence,  Vol.  1;  Revised  Statutes  of  Illinois,  1844;  Kent's  Com- 
mentaries; Smith's  Landlord  and  Tenant;  Story's  Equity  Jurispru- 
dence, 1843;  Parsons'  Law  of  Contracts,  2  vols.;  Wharton's  Criminal 
Law;  Redfield's  Law  of  Railways;  Stephen's  Pleading.  In  the  Oren- 
dorf  collection:  Barbour  &  Herrington,  Eq.  Dig.,  Vol.  3;  Biddle  & 
McMurtrie,  Index  to  Eng.  Com.  Law,  2  vols. ;  Taylor  on  Poisons  in 
Relation  to  Medical  Jurisprudence;  Barbour's  Eq.  Dig.  of  U.  S.,  etc. ; 
3  Curtis'  U.  S.  Dig.,  1846;  Chitty  &  Temple,  Law  of  Carriers;  Angell 
&  Ames  on  Corporations;  1  U.  S.  Digest  for  1847. 

292 


XXV 


AS  PRESIDENT 


THE  condition  of  the  government  when  Lin- 
coln reached  Washington  may  fairly  be 
described  as  chaotic.  Bewildered  and  intimidated 
by  threats  of  secession,  most  of  the  political  lead- 
ers in  the  North  had  lost  their  heads,  and  their 
Babel  of  incoherencies  merely  aggravated  the 
hopeless  confusion.  During  the  first  weeks  of 
December,  1860,  at  least  forty  bills,  each  promis- 
ing national  salvation,  were  introduced  into  the 
House  and  Senate,  and  more  futile  propositions 
were  probably  never  submitted  to  a  legislative 
body.  Every  form  of  weak-kneed  compromise 
from  sentimental  sop  to  abject  surrender  had  its 
nervous  advocate,  and  between  Andrew  John- 
son's puerile  scheme  of  giving  the  Presidency  to 
the  South  and  the  Vice-Presidency  to  the  North, 
and  vice  versa,  every  alternate  four  years,  and 
Daniel  Sickles's  wild-eyed  pother  about  New 
York  city's  separation  from  the  Union,  every 

293 


LINCOLN  THE  LAWYER 

phase  of  political  dementia  was  painfully  ex- 
hibited. 

It  was  not  only  the  mental  weaklings  who  col- 
lapsed under  the  strain.  There  were  men  of  force 
and  character  among  the  panic-stricken — men 
who  bulked  big  in  the  national  councils  and  whose 
reputation  as  lawyers  and  jurists  stood  firmly 
established.  But  in  all  the  discussions  concerning 
the  legality  of  secession  there  was  no  note  of 
authority  in  the  utterances  of  the  Union  advo- 
cates, and  the  stout  assertions  of  the  secessionists 
for  the  most  part  passed  unchallenged.  Indeed, 
President  Buchanan,  who  had  achieved  consid- 
erable distinction  as  a  lawyer  before  his  elevation 
to  office,  employed  his  legal  talents  to  such  poor 
advantage  that  he  virtually  argued  against  his 
own  client,  noting  prohibitions,  negations,  and 
general  impotency  in  every  line  of  the  Constitu- 
tion, but  not  seeing  one  word  of  help  in  it  for  the 
government  he  represented.  As  Seward  re- 
marked, his  long  and  argumentative  message  to 
Congress  in  December,  1860,  conclusively  proved, 
first,  that  no  State  had  the  right  to  secede  unless 
it  wanted  to,  and,  second,  that  it  was  the  Presi- 
dent's duty  to  enforce  the  law  unless  somebody 
opposed  him.    But  Buchanan  had  the  benefit  of 

294 


AS  PRESIDENT 

Stanton's  distinguished,  if  ineffective,  advice  in 
the  preparation  of  that  very  message,  and  Sew- 
ard himself,  able  lawyer  though  he  was,  com- 
pletely lost  his  head  a  few  months  later,  his  par- 
ticular mania  taking  the  suicidal  form  of  averting 
the  civil  perils  by  instigating  a  foreign  war. 
Other  distinguished  members  of  the  bar,  like 
Reverdy  Johnson,  feeling  the  ground  of  pre- 
cedent slipping  beneath  their  feet,  stumbled  for- 
ward shouting  vague  warnings  against  illegal 
steps  of  any  kind,  and  Horace  Greeley,  almost 
beside  himself  with  grief  and  fear,  quavered  out 
empty  suggestions  for  conciliation  which  only 
increased  the  public  perplexity. 

It  was  in  the  midst  of  all  this  deplorable  help- 
lessness and  distraction  that  Lincoln  assumed  his 
duties  as  head  of  the  crumbling  government,  and 
of  all  the  earnest  supporters  of  the  Union  he 
alone  displayed  any  calmness  or  presence  of  mind, 
and  his  inaugural  address  contained  almost  the 
first  decisive  utterance  on  the  legal  aspect  of  the 
situation.  He  was  without  any  national  reputa- 
tion as  a  lawyer,  but  his  opening  words  were 
plainly  indicative  of  his  professional  attainments. 

No  State  could,  of  its  own  motion,  lawfully 
withdraw  from  the  Union,  he  declared  with  firm- 

295 


LINCOLN  THE  LAWYER 

ness.  It  was  not  necessary  that  the  Constitution 
should  contain  any  express  provision  forbidding 
such  action.  Perpetuity  was  implied,  if  not  ex- 
pressed, in  the  fundamental  law  of  all  national 
governments.  No  government  proper  ever  had 
a  provision  in  its  organic  law  for  its  own  termina- 
tion. But  if  the  United  States  was  not  a  govern- 
ment proper,  but  a  mere  association  of  States 
bound  by  an  agreement  in  the  nature  of  a  con- 
tract, then  the  law  of  contracts  applied.  One  party 
to  a  legal  contract  might  violate  it,  break  it,  so  to 
speak;  but  mutual  consent  of  all  the  parties  was 
necessary  before  it  could  be  lawfully  rescinded. 

Such  was  his  simple,  sane,  lawyer-like  state- 
ment of  the  law— so  simple,  indeed,  that  it 
sounded  inadequate  to  the  exigencies  of  the 
moment;  but  nothing  in  all  the  learned  volumes 
which  have  since  been  written  on  the  legal  aspects 
of  secession  has  ever  contradicted  or  disproved  it. 

Again  with  quieting  firmness  he  handled  the 
Dred  Scott  case,  the  Fugitive  Slave  Law,  and  the 
other  legal  questions  in  dispute,  divesting  them 
of  all  technicalities  and  disregarding  their  com- 
plicated refinements  until  he  reached  the  real 
issues  and  showed  that  all  the  points  in  contro- 
versy could  be  adjusted  by  well-recognized  prin- 

296 


AS  PRESIDENT 

ciples  of  law.  In  a  word,  he  placed  the  secession- 
ists for  the  first  time  on  the  defensive,  appealed  to 
the  deep  law-abiding  sentiment  of  the  American 
people,  and  afforded  the  supporters  of  the  Union 
a  firm,  legal  foothold.  He  knew  the  moral  effect 
of  a  legal  authority  which  the  people  could  under- 
stand, and  the  importance  of  his  clear,  prompt  an- 
nouncement can  not  be  overestimated. 

But  it  was  when  he  touched  upon  the  frenzied 
proposals  for  compromise  that  his  professional 
knowledge  showed  to  best  advantage.  He  had 
been  repeatedly  advised,  after  his  nomination,  to 
assure  the  South  that  he  would  do  nothing  to  in- 
validate slavery,  and  when  he  refused  to  make 
any  premature  announcement  of  his  policy,  some 
of  the  knee-shaking  compromisers  introduced 
and  passed  an  amendment  in  Congress  to  the 
effect  that  the  Federal  Government  should  never 
interfere  with  any  domestic  institution  of  the 
States,  including  that  of  persons  held  in  slavery. 
Those  who  fathered  this  amendment  firmly  be- 
lieved it  would  reconcile  the  South,  and  con- 
sidered it  of  vital  importance,  while  it  met  with 
a  storm  of  denunciation  from  those  who  regarded 
it  as  an  absolute  surrender  of  basic  principles. 
But  Lincoln  instantly  saw  that  such  a  provision 

297 


LINCOLN  THE  LAWYER 

was  powerless  for  either  good  or  evil,  and 
amounted  to  nothing  more  than  a  reaffirmation 
of  the  Constitution.  The  Federal  Government 
had  no  power  under  the  Constitution  to  interfere 
with  any  domestic  institution  of  the  States,  and 
it  was  as  puerile  as  it  was  superfluous  to  record 
the  fact  in  a  solemnly  worded  amendment. 
"Holding  such  a  provision  to  now  be  implied  con- 
stitutional law,"  Lincoln  coolly  remarked  of  the 
amendment,  "I  have  no  objection  to  its  being 
made  express  and  irrevocable." 

This  plain,  calm  and  gravely  humorous  ex- 
position of  the  legal  aspects  of  the  situation 
shows  an  experienced  lawyer  well  grounded  in 
the  fundamental  principles  of  law,  and  it  ef- 
fectually stilled  the  warring  factions  in  the  North 
by  demonstrating  the  emptiness  of  their  dispute. 

Indeed,  if  argument  could  have  averted  the 
impending  perils,  Lincoln's  initial  utterance 
would  have  carried  the  day,  for  no  one  has  ever 
challenged  the  findings  of  fact  or  overruled  the 
conclusions  of  law  of  his  first  inaugural.  It  is  a 
masterpiece  of  pleading  which  alone  should  en- 
title him  to  high  rank  in  the  profession. 

A  few  months  after  he  had  given  this  signal 
proof  of  professional  ability,  circumstances  arose 

298 


AS  PRESIDENT 

which  subjected  his  legal  qualities  to  a  test 
of  almost  unparalleled  severity,  and  had  he  not 
responded,  the  history  of  this  country  might  not 
read  as  it  does  to-day.  Shortly  after  Sumter  was 
fired  upon,  but  before  any  serious  collision  had 
occurred,  England  and  France  issued  proclama- 
tions of  neutrality,  and  this  practical  recogni- 
tion of  the  Confederacy,  which  aroused  public 
indignation  throughout  the  North,  provoked 
Seward  almost  beyond  endurance,  and  throwing 
caution  to  the  winds,  the  great  New  York  lawyer 
penned  a  note  of  instructions  to  the  American 
minister  in  London,  couched  in  such  sharp  and 
peremptory  language  that  its  presentation  to  the 
British  authorities  must  have  instantly  resulted  in 
the  severance  of  all  diplomatic  intercourse.  But 
the  man  to  whom  the  angry  Secretary  sub- 
mitted his  proposed  despatch  was  a  master  of 
self-control,  schooled  by  the  discipline  of  the 
court-room  until  he  was  proof  against  all  prov- 
ocation, and  he  calmly  redrafted  the  instru- 
ment, in  the  quiet  of  his  study.  In  its  original 
form  it  was  a  hot-headed  rebuke.  It  left  his 
hands  a  model  of  diplomatic  remonstrance— 
dignified  and  firm,  exhibiting  the  reserve  of  a 
wise  counselor  sure  of  his  own  cause,  but  offering 

299 


LINCOLN  THE  LAWYER 

neither  menace  nor  affront  to  the  parties  ad- 
dressed. No  layman  could  possibly  have  worded 
that  all-important  paper  with  equal  skill,  and  it 
is  not  too  much  to  say  that  Lincoln's  professional 
caution  and  astuteness  saved  a  situation  fraught 
with  direst  national  perils.  Certainly  his  inter- 
lineations, suggestions,  and  emendations,  as  they 
appear  on  Seward's  manuscript,  of  themselves 
afford  a  lesson  in  legal  sagacity  and  foresight 
worthy  the  closest  scrutiny  of  every  student  of 
the  law. 

The  times  demanded  a  lawyer,  and  a  lawyer  of 
ability.  The  average  practitioner  would  have 
been  appalled  by  the  situation.  Menacing  legal 
obstacles  were  interposed  to  every  act  of  the  ad- 
ministration, new  questions  presented  themselves 
for  consideration  at  every  turn,  and  a  man  with  a 
smattering  of  legal  knowledge  or  no  legal  knowl- 
edge at  all  might  easily  have  been  fretted  to 
impotency  by  letting  I -dare-not  wait  upon  I- 
would,  for  precedents  were  wanting,  and  in 
the  many  imperious  demands  of  the  moment 
timidity  or  recklessness  spelled  equal  ruin. 
There  was  no  positive,  adjudicated  authority  for 
calling  out  the  militia  to  suppress  civil  insurrec- 
tion; there  was  no  express  provision  supporting 

300 


AS  PRESIDENT 

the  proclamation  of  blockade ;  no  precedent  could 
be  cited  for  the  muster  of  the  three-year  volun- 
teers ;  and  the  power  of  the  executive  to  increase 
the  regular  army  and  navy  was  seriously  disputed, 
to  say  nothing  of  his  right  to  suspend  the  writ  of 
habeas  corpus.  The  conditions  were  all  new,  but 
the  situation  admitted  of  no  delay.  Counsel  were 
not  wanting,  but  the  ablest  of  them  differed 
among  themselves,  and  every  shade  of  opinion 
was  represented  in  the  discussion  of  these  and 
kindred  questions.  The  extremists,  free  of  all 
responsibility,  were  urgent  for  prompt  action, 
heroic  measures,  martial  law,  and  every  other 
means,  legal  or  illegal,  to  effect  their  purposes; 
the  opposition  was  untiring  in  its  demands  for 
the  judicial  interpretation  of  each  letter  of  the 
law.  Under  such  circumstances  it  naturally  fol- 
lowed that  every  exhibition  of  caution  on  the  part 
of  the  administration  was  denounced  as  coward- 
ice and  every  decisive  action  was  hailed  as  usur- 
pation. True  to  his  training  begun  in  the  days 
when  Stuart  left  him  to  answer  his  own  questions 
in  the  dingy  Springfield  office,  Lincoln  did  his 
own  thinking  on  the  momentous  problems  which 
he  encountered,  and  he  solved  them  without  any 
attempt  to  shift  responsibility  for  the  result.    He 

301 


Km^c^X:    p^tA^t*-/     <rS   C^^jr^^i     ^w  JL     /2b.  ^    A"/^     a^^y 
c<*^.     erf*  /J-&si+si^a^2r    ^^     <""'^~'     iy-£-*>~J     enf  cn~>s  Q£er>~e>is   cn*-eJ 

tSpjl4-uCs*JC'     enf .  Oi-*-*~vO      ***'  /ui^-e^^  C^U}     A«--^"     /2<^L<2e-   £0^*/ 
&*-       &>~)      Ct^t-L-'}      &-/5GZ      £Zf(jO     [10^2^r^>      erf*  P^-r    &-<ZC '•      (2-+*^ois 


O-^y      /J^-K^CTZZi,  ,      ifu*J  .»y€rz~v-C<?    oyf  P%Zj  fl-ct-i. 

ffV^,     C&l^,     ^  &&    fljz-^^^^    ^    f~^~   <X^£~JZZ;  <aZJ&& 
£i~~~K/     jf^io^j  /inZ^-'      0~l^ts    '?Cp-£j/?   C^Cj  /t^u^^voO^  gjf  f1-*^***' 

From  Major  Wm.  H.  Lambert's  collection 

First  draft  in  Lincoln's   handwriting,   of  a   bill  for  the   emancipation 

of  slaves  in  Delaware 

This  and  the  second  draft  on  page  306  were  written  by  Lincoln  in  November, 
1861.  The  friends  of  the  measure,  in  Delaware,  rewrote  one  of  these  drafts,  but  as 
the  bill  was  sure  to  be  voted  down  it  was  never  introduced  in  the  state  legislature. 

302 


1r\l~<*~~v     QJ^ro      ibfcvu    ^a^*+s  J/ZZj    /h-^y    (?VA^Xvfvi«W^ 
0-K*/   r**-o~~>     'lfinr  fl*~*&i     (*~rv  p*^£tZl~j   /&rv  sjH^* — *^*t     ^P"~   <a-£€/ 

listened  to  advice,  but  seldom  asked  it, — one  of 
his  notable  traits  as  a  lawyer — and  no  member 
of  his  cabinet  ever  claimed  to  have  exerted  any 
paramount  influence  upon  his  actions. 

But  if  the  times  demanded  bold,  fearless  de- 
cision, and  firmness,  they  also  necessitated  argus- 
eved  caution  and  shrewdness. 

All  the  enemies  of  the  Union  were  not  in  the 
Confederate  armies,  and  thousands  of  sharp, 
cunning  plotters  in  the  North  watched  eagerly 
for  a  legal  blunder  of  which  they  could  take  ad- 
vantage, while  they  attempted  to  intimidate  Lin- 
coln to  inaction  by  holding  before  him  the  direful 
consequences  of  a  mistake.  Indeed,  when  a  bill 
was  introduced  into  Congress,  in  1861,  to  confirm 
some  of  his  boldest  decisions  for  which  there  was 
no  positive  legal  precedent,  it  was  bitterly 
opposed  by  the  exponents  of  this  badgering 
policy  and  was  passed  only  after  a  stubborn  con- 
test. 

But  when  at  last  he  was  jclothed  with  powers 

303 


LINCOLN  THE  LAWYER 

such  as  few  monarchs  have  ever  exercised,  when 
the  fate  of  men  and  of  the  very  nation  itself  often 
depended  upon  a  stroke  of  his  pen,  the  caution 
and  vigilance  born  of  his  long  experience  at  the 
bar  characterized  his  every  action.  It  would  be 
interesting  to  hear  the  confessions  of  the  hun- 
dreds who  called  at  the  White  House  with  the 
purpose  of  obtaining  his  signature  to  incrimi- 
nating documents,  only  to  have  their  apparently 
innocent  request  granted  in  such  manner  that  it 
defeated  their  sinister  designs.  Almost  every 
line  of  Lincoln's  writing,  from  the  official  docu- 
ment to  the  scribbles  on  the  little  calling-cards 
which  he  used  to  answer  the  thousand-and-one  re- 
quests of  the  visitors  who  thronged  his  anteroom 
day  after  day,  shows  a  master  of  prudence,  ac- 
quainted with  the  dangers  lurking  in  every  piece 
of  paper,  and  able  to  guard  himself  against  sur- 
prise with  apparent  unconcern. 

It  was  a  time  when  great  events  often  hung 
upon  trifles,  when  the  effective  man  was  he  who 
could  tell  whom  to  trust  and  whom  to  suspect,  and 
at  every  crisis  and  all  hours  of  the  day  there  was 
a  shrewd  lawyer  in  the  White  House. 

It  was  Lincoln  the  lawyer  as  well  as  the  states- 
man   who    suggested    and   urged    compensated 

304 


AS  PRESIDENT 

emancipation  upon  the  slave-holding  States,  and 
who,  as  counsel  for  that  great  cause,  himself  drew 
the  draft  of  the  bill  designed  for  Delaware, 
which,  had  it  been  generally  accepted,  would  have 
saved  thousands  of  lives  and  millions  of  treasure. 

It  was  Lincoln  the  lawyer  who,  against  his 
personal  inclinations  and  the  heaviest  of  moral 
pressure,  resisted  every  effort  of  the  abolitionists 
to  deprive  the  South  of  her  property  rights  with- 
out due  process  of  law,  and  it  was  not  until  every 
legal  remedy  had  failed  that  he  exercised  his 
authority  as  military  commander  and  issued  the 
Emancipation  Proclamation 

It  was  Lincoln  the  lawyer  who,  fortified  by  his 
experience  in  hundreds  of  jury  trials,  watched 
the  people  to  whom  a  mighty  issue  was  being 
presented,  and,  by  anticipating  and  interpreting 
their  thought,  guided  popular  opinion,  inspired 
public  confidence  and  at  last  received  the  tribute 
of  an  unprecedented  verdict.  It  was  Lincoln  the 
lawyer  who,  knowing  the  crucial  point  in  his 
cause  and  keeping  it  continually  in  sight,  re- 
mained serenely  sane  in  the  Babel  and  pressed 
steadily  forward,  undiverted  and  undismayed. 

It  was  Lincoln  the  lawyer  who  wrote  the  State 
papers  which  are  to-day  recognized  as  models  of 

305 


Zes^C&frJZS}    /ulj   /S~  £pj&    ^e^u,   J^CZZj   oaf  j9eJZ~~*L~J,  <^-  C& 

Jt^i^T    fi^a^o     £-£aJ?J2/    £e>    Ifr-e-csC&L^    /L-Zz^-e^y  •/Ktrv   4^siS»-C-l*^G<s- 

VV        J-&^l^r\^£t^eCO  tf-O       &-*~J    jU4IW      Q-jpt*-^      £-T**l     sfCl^ZT    &La-y     of\L±i~~s- 

O-jf   l$>>    A"— "$       0^&*e-es  JCo-v^)   t£-e*e~~s  £*=«—&      G-e^^-^-^-O;  fh-ovt  jzsxs-- 
C^fC^i    «2*>C    O^-crf    &>**,    A^A^tr*-^    Ct^(s2n>+j    jC/i«;    o-r/3     ajf  t-^LC^y  ^pLv»> 

of  (&**»  fuz^nr^J     cr*^  of  p-e~~<xj  fiyGrX,     i^Xo    ey^*nr*&ZO*y  A^^-^-^^f 

x^h-clj     C-*J     iAj       JtA^'CfCr^j    frl^»~cZ*leO       L-4*-ClZ    <)&&^*V  stf/S^Ei   (h-t^y 
1  rum  Major  Wm.  H.  Lambert's  collection. 

Second  draft,  in  Lincoln's  handwriting,  of  a  bill  for    compensated 
emancipation  of  slaves  in  Delaware. 


306 


LINCOLN  THE  LAWYER 

finish  and  form,  not  only  in  his  own  country,  but 
wherever  statecraft  is  understood,  and  it  was 
Lincoln  the  lawyer  whose  shrewdness  and  tact 
not  only  saved  the  nation  from  foreign  complica- 
tions, but  paved  the  way  for  one  of  the  greatest 
international  lawsuits  and  most  notable  diplo- 
matic triumphs — the  Alabama  arbitration  and 
award. 

On  the  11th  of  April,  1865,  only  four  days  be- 
fore his  death,  Lincoln  spoke  of  the  work  still  to 
be  completed.  It  was  the  hour  of  countless  legal 
questions  concerning  the  status  of  the  seceded 
states,  all  based  upon  the  inquiry  whether  they 
were  still  in  the  Union  or  out  of  it,  and  hot  dis- 
cussions on  this  delicate  point  were  carrying  the 
disputants  far  afield.  But  Lincoln  had  written 
that  as  a  peacemaker  the  lawyer  had  a  superior 
opportunity  of  proving  himself  a  good  man,  and, 
true  to  his  own  teaching,  the  great  advocate 
waived  the  quibbling  issue  aside  and  passed 
directly  to  the  heart  of  the  case. 

"That  question,"  he  remarked,  "is  bad  as  the 

basis  of  a  controversy  and  good  for  nothing  at 

all— a  merely  pernicious   abstraction.     We  all 

agree  that  the  seceded  states,  so-called,  are  out 

of  their  proper  relation  to  the  Union,  and  that 
is  307 


#~<nrKj~ji  x^c  C^yCo  £t^£bj  £%,  o£&Zb-~*j  ^>~£  p^,  A^cU~~y  ££, 

^K^^_a_£      (^^X-a-£/K~*~A^        CeO-vi—j^wA^*^ — <x^     ^^2~re— <■    Aw  (?i^-».»&-t 
From  Major  Win.  H,  Lambert's  collection. 

Lincoln's    comments   on   the    proposed    measure    of   compensated 
emancipation  in  Delaware. 


308 


AS  PRESIDENT 

the  sole  object  of  the  government,  civil  and  mili- 
tary, in  regard  to  those  States  is  to  again  get  them 
into  that  proper  relation Finding  them- 
selves safely  at  home,  it  would  be  utterly  im- 
material whether  they  had  ever  been  abroad.  Let 
us  all  join  in  doing  the  acts  necessary  to  restoring 
the  proper  practical  relations  between  these 
States  and  the  Union,  and  each  forever  after  in- 
nocently indulge  his  own  opinion  whether  in 
doing  the  acts  he  brought  the  States  from  with- 
out into  the  Union,  or  only  gave  them  proper 
assistance,  they  never  having  been  out  of  it." 

Reading  those  words,  who  can  doubt  that  it 
would  have  been  Lincoln  the  lawyer  who  would 
have  proved  the  genius  of  reconstruction  had  he 
been  allowed  to  live  and  help  "bind  up  the  nation's 
wounds?" 

In  the  Oak  Ridge  Cemetery  at  Springfield  an 
imposing  pile  of  masonry  marks  the  spot  where 
Lincoln  lies.  It  is  embellished  with  mighty 
groups  in  bronze  representing  the  glamour  and 
heroics  of  war — soldiers  and  sailors  dying  and 
dealing  out  death — pain,  horror,  defiance,  and 
rage  depicted  on  their  faces. 

But  among  all  these  symbols  of  "valiant  dust" 

309 


LINCOLN  THE  LAWYER 

one  looks  in  vain  for  some  recognition  of  the 
lawyer,  jurist,  and  statesman,  whose  whole  life- 
work  was  an  appeal  to  men's  reason  and  the 
highest  motives  of  humanity,  whose  only  weapons 
were  argument  and  persuasion,  and  who  ever  in- 
voked Justice  and  never  the  God  of  Battles  for 
the  triumph  of  his  cause. 


310 


APPENDICES 


ILLINOIS  SUPREME  COURT  MEMORIAL 

On  Wednesday,  May  3,  1865,  the  Supreme  Court  of 
Illinois  convened  in  the  court  room  at  Ottawa  to  honor 
the  memory  of  Abraham  Lincoln.  The  full  bench  was 
present  in  the  persons  of  Hon.  P.  H.  Walker,  Chief  Jus- 
tice; Hon.  Sidney  Breese  and  Hon.  Charles  B. 
Lawrence,  Associate  Justices,  and  the  proceedings  are  re- 
ported in  37  Illinois,  Supreme  Court  Reports,  page  1. 

As  a  rule,  memorial  addresses  are  not  the  best  evidence 
for  historical  purposes,  but  the  men  who  spoke  upon  this 
occasion  were  so  intimately  acquainted  with  Mr.  Lin- 
coln's professional  life  that  their  estimates  of  him  as  a 
lawyer  cannot  be  disregarded. 

The  Hon.  J.  D.  Caton,  formerly  Chief  Justice  of  the 
court,  spoke  in  part  as  follows: 

"  .  .  .  .  For  nearly  thirty  years  Mr.  Lincoln  was  a 
member  of  this  bar.  But  few  of  us  are  left  who  pre- 
ceded him.  From  a  very  early  period  he  assumed  a  high 
position  in  his  profession.  Without  the  advantage  of 
that  mental  culture  which  is  afforded  by  a  classical  edu- 
cation, he  learned  the  law  as  a  science.  Nature  en- 
dowed him  with  a  philosophical  mind,  and  he  learned 
and  appreciated  the  elementary  principles  of  the  law 
and  the  reasons   why   they   had  become   established  as 

313 


APPENDIX  I 

such.  He  remembered  well  what  he  read  because  he 
fully  comprehended  it.  He  understood  the  relation  of 
things,  and  hence  his  deductions  were  rarely  wrong  from 
any  given  state  of  facts.  So  he  applied  the  principles 
of  the  law  to  the  transactions  of  man  with  great  clear- 
ness and  precision.  He  was  a  close  reasoner.  He  rea- 
soned by  analogy  and  usually  enforced  his  views  by  apt 
illustrations.  His  mode  of  speaking  was  generally  of  a 
plain  and  unimpassioned  character,  and  yet  he  was  the 
author  of  some  of  the  most  beautiful  and  eloquent  pas- 
sages in  our  language,  which,  if  collected  together, 
would  form  a  valuable  contribution  to  American  litera- 
ture. Those  who  supposed  Mr.  Lincoln  was  destitute  of 
imagination  or  fancy  knew  but  little  of  his  mental  en- 
dowments. In  truth  his  mind  overflowed  with  pleasing 
imagery.  His  great  reputation  for  integrity  was  well 
deserved.  The  most  punctilious  honor  ever  marked  his 
professional  and  private  life.  He  seemed  entirely  ignor- 
ant of  the  art  of  deception  or  of  dissimulation.  His 
frankness  and  candor  were  two  great  elements  in  his 
character  which  contributed  to  his  professional  suc- 
cess. If  he  discovered  a  weak  point  in  his  cause,  he 
frankly  admitted  it,  and  thereby  prepared  the  mind  to 
accept  the  more  readily  his  mode  of  avoiding  it.  I  ven- 
ture the  assertion  that  no  one  ever  accused  him  of  tak- 
ing an  underhanded  or  unfair  advantage  in  the  whole 
course  of  his  professional  career.  He  was  equally  potent 
before  the  jury  as  with  the  court"   .... 

Mr.  Justice  Breese  on  behalf  of  the  bench  responded 
as  follows: 

'.  .  .  .  It  becomes  us  to  speak  of  him  only  as  a  man 

314 


a 


APPENDIX  I 

and  as  a  lawyer — as  a  member  of  an  honorable  profes- 
sion from  whose  ranks  have  been  taken  in  times  of  the 
greatest  emergency  men  whose  high  destiny  it  has  been 
not  only  to  guide  the  car  of  victory,  but  to  sustain  the 
weight  of  empire Not  deeply  read  in  his  pro- 
fession, Mr.  Lincoln  was  never  found  deficient  in  all  the 
knowledge  requisite  to  present  the  strong  points  of  his 
case  to  the  best  advantage,  and  by  his  searching  analy- 
sis, make  clear  the  most  intricate  controversy.     He  was, 
besides,  an  honest  lawyer  practising  none  of  the  chican- 
ery of  the  profession  to  which  he  was  devoted,  nor  any 
of  those  mean  and  little  and  shuffling  and  dishonorable 
arts  all  do  not  avoid ;  nor  did  he  seek  an  advantage  over 
his  adversary  to  which  he  was  not  fairly  entitled  by  the 
merits  of  his  cause  and  by  the  force  of  his  arguments. 
With  an  exterior  by  no  means  polished,  with  nothing  in 
the  outward  man  to  captivate,  there  was  that  within  him, 
glowing  in  his  mind,  which  enabled  him  to  impress,  by 
the  force  of  his  logic,  his  own  clear  perceptions  upon 
the  minds   of  those  he  sought  to  influence.      He  was, 
therefore,  a  successful  lawyer,  but  bore  with  humility 
the  distinction  he  had  won.     For  my  single  self  I  have 
for  a  quarter  of  a  century  regarded  Mr.  Lincoln  as  the 
fairest  law}^er  I  ever  knew,  and  of  a  professional  bear- 
ing so  high-toned  and  honorable  as  justly  and  without 
derogating  from  the  claims  of  others,  entitling  him  to 
be  presented  to  the  profession  as  a  model  well  worthy 
of  the  closest  imitation."   .... 

The  court  then  adjourned  for  two  days  as  a  mark  of 
respect. 


315 


II 


LINCOLN'S  CASE  AGAINST  THE  ILLINOIS 
CENTRAL  R.R. 

The  facts  in  regard  to  Mr.  Lincoln's  suit  against  the 
Illinois  Central  Railroad  Company  being  in  dispute,  and 
the  officials  of  that  company  having  submitted  to  the 
writer  all  the  proofs  in  their  possession,  it  is  only  proper 
that  both  sides  of  the  question  should  be  fully  stated. 

The  railroad  contends  in  its  publication  entitled 
"Abraham  Lincoln  as  Attorney  for  the  Illinois  Central 
Railroad"  that  it  did  not  refuse  to  pay  its  counsel's 
charges  and  that  there  was  no  substantial  dispute  be- 
tween them.  According  to  the  pamphlet,  Mr.  John 
Douglas,  the  general  counsel  of  the  road,  advised  Mr. 
Lincoln  that  if  he  paid  a  fee  of  $5,000  to  a  western 
country  attorney  without  protest  it  would  embarrass 
him  with  the  Board  of  Directors,  "who  would  not  under- 
stand as  would  a  lawyer  the  importance  of  the  case  and 
the  consequent  value  of  Mr.  Lincoln's  services."  It  was, 
therefore,  arranged  that  Mr.  Lincoln  should  bring  a 
friendly  suit  against  the  road  and  whatever  sum  should 
be  allowed  by  the  court  and  jury  would  be  paid  without 
appeal.  Mr.  Lincoln,  it  is  alleged,  had  himself  been  in 
some  doubt  as  to  what  to  charge  and  had  originally  sug- 
gested $2,000,  but  Messrs.  Dubois  &  Miner  of  the  State 

316 


APPENDIX  II 

Auditor's  office  urged  him  not  to  suggest  less  than 
$5,000,  and  he  finally  made  out  and  mailed  to  the  com- 
pany a  voucher  for  that  amount. 

The  suit  subsequently  instituted  to  collect  this  fee 
was  tried  before  Mr.  Justice  Davis  and  jury  in  June, 
1857.  No  witnesses  were  examined,  but  by  consent  of 
counsel  a  statement  was  read  to  the  jury,  signed  by  the 
most  prominent  lawyers  in  Illinois  certifying  that  Mr. 
Lincoln's  charge  was  reasonable,  and  after  a  brief  speech 
by  the  plaintiff  in  person  a  verdict  was  recorded  for  the 
full  amount.  Mr.  Douglas  was  not  present  during  this 
so-called  trial,  having  been  delayed  in  reaching  the  court 
room,  and  when  he  arrived  and  asked  that  the  case  be  re- 
opened so  that  he  might  not  appear  to  be  in  default, 
his  request  was  granted  and  on  the  second  trial,  which 
occurred  a  few  days  later,  the  sum  of  $200  already  re- 
ceived by  Mr.  Lincoln  as  a  retainer,  was  credited  to  the 
defendant  and  verdict  rendered  for  $4,800  and  costs 
from  which  an  appeal  was  allowed,  but  never  perfected, 
and  the  judgment  was  finally  paid  in  full.  Several 
members  of  the  Illinois  bar  who  are  now  living  and  who 
were  present  in  the  court  room  testify  that  the  conduct 
of  the  trial  was  extremely  informal  and  otherwise  con- 
firm this  part  of  the  story. 

The  representatives  of  the  railroad  further  call  at- 
tention to  the  fact  that  Mr.  Lincoln  received  a  pass  as 
counsel  for  the  railroad  on  December  31,  1857,  after 
the  institution  of  his  suit,  and  that  he  apparently  con- 
tinued to  represent  the  company  up  to  the  time  when  he 
was  elected  to  the  presidency.  All  this,  it  is  maintained, 
demonstrates  that  the  corporation  never  refused  to  pay 

317 


APPENDIX  II 

Mr.  Lincoln's  charges — that  the  litigation  was  a 
friendly  formality  and  that  the  relations  between  counsel 
and  client  were  not  affected  thereby. 

There  is,  however,  another  version  of  the  facts.     It 
has  been  asserted  by  Lincoln's  law  partner,  Herndon, 
who  states  that  he  received  half  the  fee,  that  Lincoln 
originally  put  in  a  bill  for  $2,000,  which  was  rejected 
by  the  company's  officials  with  the  comment  that  that 
was  as  much  as  a  first-class  lawyer  would  charge,  which 
reply  resulted  in  Lincoln's  withdrawal  of  the  bill  and  a 
prompt  suit  against  the  company  for  the  full  value  of 
his  services,   which   he   placed   at   $5,000,   he  -and   his 
partner  "thanking  the  Lord"  that  the  avaricious  cor- 
poration had  "fallen  into  their  hands."     This  statement 
has  often  been  quoted  since  it  was  first  published  many 
years  ago  and  it  has  not,  until  recently,  been  contra- 
dicted.    If  it  depended  wholly  upon  Herndon's  evidence, 
it  might  perhaps  be  disregarded,  for  its  tone  and  inac- 
curate  details   are   suspicious   circumstances,   but  there 
is   corroboration,    for    Mr.    Lincoln's    "declaration"    or 
complaint     goes     far    to    demonstrate    that     the    de- 
fendant did  refuse  to  pay  his  charges.     In  this  docu- 
ment, which  is  in  his   own  handwriting,  after  setting 
forth  his  claim  for  $5,000,  he  continues  "yet  the  said 
defendant  (although  often  requested  so  to  do)  has  not, 
as  yet,  paid  said  sum  of  money  or  any  part  thereof, 
but  so  to  do  has  hitherto  wholly  neglected  and  refused, 
and  still  does  neglect  and  refuse."     Of  course,  it  may 
be  claimed   that   this   language   and   the   corporation's 
written  denial  of  the  debt  (in  its  answering  plea)  were 
mere  formalities.     Nevertheless,  it  is  well  known  that 

318 


APPENDIX  II 

lawyers  dislike  to  sue  for  their  serviees,  no  matter  how 
just  their  charges  may  be,  as  such  action  always  opens 
them  to  the  accusation  of  having  made  an  unreasonable 
claim  and  places  them,  to  that  extent,  in  a  false  position, 
and  it  is  not  probable  that  Lincoln  relished  this  dis- 
position of  his  account.  Certainly  the  client  who  thus 
refers  his  lawyer  to  the  courts  for  satisfaction  has  no 
reason  to  complain  if  the  action  is  misunderstood. 

Moreover,  the  reason  assigned  for  the  Illinois  Cen- 
tral's action  in  Lincoln's  case — that  the  Board  of  Direct- 
ors would  not  be  able  to  comprehend  the  importance  and 
value  of  his  services  without  the  aid  of  a  jury — is  not 
complimentary,  either  to  the  intelligence  or  the  sincerity 
of  the  Board,  nor  is  it  otherwise  convincing.  However, 
the  evidence  being  conflicting,  the  defendant  is  entitled 
to  whatever  benefit  there  is  in  the  doubt. 


319 


Ill 


LINCOLN'S  CASES  IN  THE  ILLINOIS  COURT 
OF  LAST  RESORT 

The  following  is  a  list  of  Mr.  Lincoln's  cases  in  the 
Supreme  Court  of  Illinois — the  highest  appellate  tri- 
bunal in  the  state  —  showing  a  record  rarely,  if  ever 
equaled  in  his  day. 

Scannon    v.    Cline 3  Ills.  456 

Cannon  v.  Kinney 4  Ills.      9 

Maus  v.  Worthing 4  Ills.    26 

Bailey  v.  Cromwell 4  Ills.    71 

Ballentine  v.  Beall 4  Ills.  203 

Elkin  v.  The  People 4  Ills.  207 

Benedict  v.  Dellihunt 4  Ills.  287 

Abrams  v.  Camp 4  Ills.  291 

Hancock  v.  Hodgson 4  Ills.  329 

Grable  v.  Margrave 4  Ills.  372 

Averill  v.  Field 4  Ills.  390 

Wilson  v.  Alexander 4  Ills.  392 

Schlencker  v.  Risley 4  Ills.  483 

Mason  v.  Park 4  Ills.  532 

Greathouse  v.  Smith 4  Ills.  541 

Watkins  w.  White 4  Ills.  549 

320 


APPENDIX  III 

Payne  v.  Frazier 5  Ills.    55 

Fitch  v.  Pinckard 5  Ills.    69 

Edwards  v.  Helm 5  Ills.  142 

Grubb  v.  Crane 5  Ills.  153 

Pentecost  v.  Magahce 5  Ills.  326 

Robinson  v.  Chesseldine 5  Ills.  332 

Lazell  v.  Francis 5  Ills.  421 

Spear  v.  Campbell 5  Ills.  424 

Bruce  v.  Truett 5  Ills.  454 

England  v.  Clark 5  Ills.  486 

Johnson  v.  Weedman 5  Ills.  495 

Hall  v.  Perkins 5  Ills.  548 

Lockbridge  v.  Foster 5  Ills.  569 

Dorman  v.  Lane 6  Ills.  143 

Davis   v.   Harkness 6  Ills.  173 

Martin  v.  Drey  den 6  Ills.  187 

Warner  v.  Helm 6  Ills.  226 

Favor  v.  Marlett 6  Ills.  385 

Parker  v.  Smith 6  Ills.  411 

Stickney  v.  Cassell 6  Ills.  418 

Kimball  v.  Cook 6  Ills.  423 

Wren  v.  Moss 6  Ills.  560 

Morgan  v.  Griffin 6  Ills.  565 

Cook  v.  Hall 6  Ills.  575 

Field  v.  Rawlings 6  Ills.  581 

Broadwell  v.  Broadwell 6  Ills.  599 

Rogers  v.  Dickey 6  Ills.  636 

Kelly  v.  Garrett 6  Ills.  649 

McCall  v.  Lesher 7  Ills.    46 

321 


appendix;  in 

McCall  v.  Lesher 7  Ills.    47 

Wren  v.  Moss 7  Ills.    72 

Risinger  w.  Cheney 7  Ills.    84 

Eldridge  ».  Rowe 7  Ills.    91 

Frisby  v.  Ballance 7  Ills.  141 

Hall  v.  Irwin 7  Ills.  176 

City  of  Spi-ingfield  v.  Hickox      .    •.     .     .  7  Ills.  241 

Ross  v.  Nesbit 7  Ills.  252 

Simpson  v.  Ranlett 7  Ills.  312 

Murphy  v.  Summerville      ......  7  Ills.  360 

Trailor  v.  Hill 7  Ills.  364 

Chase  v.  Debolt .7  Ills.  371 

Smith  w.  Byrd 7  Ills.  412 

Moore  v.  Hamilton    . 7  Ills.  429 

McNamara  v.  King 7  Ills.  432 

Ellis  v.  Locke 7  Ills.  459 

Bryan  v.  Wash 7  Ills.  557 

Wright  v.  Bennett 7  Ills.  587 

Kincaid  v.  Turner. 7  Ills.  618 

Cunningham  v.  Fithian 7  Ills.  650 

Wilson  v.  Van  Winkle 7  Els.  684 

Patterson  v.  Edwards 7  Ills.  720 

Driggs  v.  Gear 8  Ills.      2 

Edgar  Co.  v.  Mayo 8  Ills.    82 

Roney  v.  Monaghan 8  Ills.    85 

The  People  v.  Brown 8  Ills.    87 

Munsell  v.  Temple 8  Ills.    93 

Fell  v.  Price 8  Ills.  186 

Wright  v.  Taylor 8  Ills.  193 

Welch  v.  Sykes 8  Ills.  197 

Hawks  v.  Lands 8  Ills.  227 

322 


APPENDIX  III 

Garrett  v.  Stevenson 8  Ills.  261 

Henderson  v.  Welch 8  Ills.  340 

Cowles  v.  Cowles 8  Ills.  435 

Wilcoxon  v.  Roby 8  Ills.  475 

Trumbull  v.  Campbell 8  Ills.  502 

Cooper  v.  Crosby 8  Ills.  50G 

Shaeffer  v.  Weed 8  Ills.  511 

Anderson  v.  Ryan 8  Ills.  583 

Wright  v.  McNeely 11  Ills.  241 

Webster  v.  French 11  Ills.  254 

Adams  v.  The  County  of  Logan   .      .     .     .11  Ills.  336 

Pearl  v.  Wellmans 11  Ills.  352 

Lewis  v.  Moffett 11  His.  392 

Austin  v.  The  People 11  His.  452 

Williams  v.  Blankenship 12  Ills.  122 

Smith  v.  Dunlap 12  Ills.  184 

McHenry  v.  Watkins 12  Ills.  233 

Whitecraft  v.  Vanderver 12  Ills.  235 

Enos  v.  Capps 12  Ills.  255 

Ward  V.  Owens 12  Ills.  283 

Linton  v.  Anglin 12  Ills.  284 

Penny  v.  Graves 12  Ills.  287 

Compher  v.  The  People 12  Ills.  290 

Major  v.  Hawkes 12  Ills.  298 

Webster  v.  French 12  Ills.  302 

The  People  v.  Marshall 12  Ills.  391 

Dunlap  v.  Smith 12  Ills.  399 

Dorman  v.  Tost 13  Ills.  127 

Perry  v.  McHenry 13  Ills.  227 

19  323 


APPENDIX  III 

McArtee  v.  Engart        13  Ills.  242 

Manly  v.  Gibson 13  Ills.  308 

Harris  v.  Shaw 13  Ills.  456 

Banet  v.  The  Alton  &  Sangamon  R.  R. 

Co., 13  Ills.  504 

Klein  v.  The  Alton  &  Sangamon  R.  R. 

Co., 13  Ills.  514 

Casey  v.  Casey 14  Ills.  112 

Ross  v.  Irving 14  Ills.  171 

Pry  or  v.  Irving 14  Ills.  171 

Alton  &  Sangamon  R.  R.  Co.  v.  Carpenter  .  14  Ills.  190 
Alton  &  Sangamon  R.  R.  Co.  v.  Baugh  .     .   14  Ills.  211 

Stewartson  v.  Stewartson 15  Ills.  145 

Byrne  v.  Stout 15  Ills.  180 

Pate  v.  The  People 15  Ills.  221 

Sullivan  v.  The  People 15  Ills.  233 

Humphreys  v.  Spear 15  Ills.  275 

The  People  v.  Blackford 16  Ills.  166 

Edmunds  v.  Myers 16  Ills.  207 

Edmunds  v.  Hildreth 16  Ills.  214 

Gilman  v.  Hamilton 16  Ills.  225 

The  Chicago,  Burlington  &  Quincy  R.  R. 

v.  Wilson 17  Ills.  123 

Browning  v.  The  City  of  Springfield     .     .  17  Ills.  143 
Turley  v.  The  County  of  Logan   .     .      .     .17  Ills.  151 

Armstrong  v.  Mock 17  Ills.  166 

Booth  v.  Rives 17  Ills.  175 

324 


APPENDIX  III 

Myers  v.  Turner 17  Ills.  179 

Myers  v.  Turner 17  Ills.  179 

Hildreth  v.  Turner 17  Ills.  184 

Moore  v.  Vail 17  Ills.  185 

Moore  v.  Dodd 17  Ills.  185 

Loomis  v.  Francis     > 17  Ills.  206 

The  Illinois  Central  Railroad  Co.  v.  The 

County  of  McLean 17  Ills.  291 

Johnson  v.  Richardson 17  Ills.  302 

Phelps  v.  McGee 18  Ills.  155 

County  of  Christian  v.  Overholt  .     .      .     .18  Ills.  223 

McConnell  v.  The  Delaware  M.  S.  Ins.  Co.  .  18  Ills.  228 

The  People  v.  Watkins 19  Ills.  117 

Partlow  v.  Williams 19  Ills.  132 

Illinois  Central  R.  R.  Co.  v.  Morrison  & 

Crabtree 19  Ills.  136 

Illinois  Central  R.  R.  Co.  v.  Hays     .     .      .19  Ills.  166 

The  People  v.  Witt 19  Ills.  169 

Sprague  v.  The  Illinois  River  R.  Co.       .      .19  Ills.  174* 

McDaniel  v.  Correll 19  Ills.  226 

The  People  v.  Bissell 19  Ills.  229 

The  People  v.  Hatch 19  Ills.  283 

Wade  v.  King 19  Ills.  301 

Kester  v.  Stark 19  Ills.  328 

St.  Louis,  Chicago  &  Alton  R.  R.  Co.  v. 

Dalby 19  Ills.  353 

Laughlin  v.  Marshall 19  Ills.  390 

The  People  v.  Ridgley 21   Ills.  65 

325 


APPENDIX  III 

Tonica  &  Petersburg  R.  R.  Co.  v.  Stein     .  21   Ills.    96 

Trustees  of  Schools  v.  Allen 21   Ills.  120 

Crabtree  v.  Kile         21   Ills.  180 

Town  of  Petersburg  v.  Metzker       ...  21   Ills.  205 

Young  v.  Ward 21   Ills.  223 

Smith  v.  Smith 21   Ills.  244 

Terre  Haute  &  Alton  R.  R.  Co.  v.  Earp       .  21   Ills.  291 
Brundage  v.  Camp 21   Ills.  330 

Constant  v.  Matteson .22  Ills.  546 

Leonard  v.  Adm'r  of  Villars 23  Ills.  377 

Cass  v.  Perkins 23  Ills.  382 

Ritchey  v.  West 23  Ills.  385 

Miller   v.  Whittakcr 23  Ills.  453 

Young  v.  Miller 23  Ills.  453 

Gill  v.  Hoblit 23  Ills.  473 

Kinsey  v.  Nisley 23  Ills.  505 

Gregg  v.  Sanford 24  Ills.    17 

Columbus  Machine  Manufacturing  Co.  v. 

Dorwin 25  Ills.  169 

Columbus  Machine  Manufacturing  Co.  v. 

Ulrich 25  Ills.  169 

Mr.  Lincoln  also  appeared  in  Cunningham  v.  Fithian,  6 
111.  269.  His  name  was  omitted  in  this  case  in  the  reports 
by  an  error.     (See  7  111.  650.) 

He  likewise  appeared  in  Walker  v.  Herrick,  18  111.  570, 
and  in  State  v.  Illinois  Central,  27  111.  64-  (See  Abraham 
Lincoln  as  Attorney  for  the  Illinois  Central  Railroad  Com- 
pany," a  pamphlet  published  by  the  Illinois  Central  in 
1905.) 

326 


APPENDIX  III 

Mr.  Lincoln  also  appeared  in  the  following  cases  in  the 
Federal  Courts : 

Lincoln  v.  Tower 2  McLean  473 

January  v.  Duncan 3  McLean     19 

Sturtevant  v.  City  of  Alton  • 3  McLean  393 

Lewis  v.  Administrators  of  Broadwell       .      .    3  McLean  568 

Voce  v.  Lawrence 4  McLean  203 

Lafayette  Bank  v.  State  Bank  of  Illinois        .    4  McLean  208 

Moore  v.  Brown 4  McLean  211 

Kemper  v.  Adams 5  McLean  507 

United  States  v.  Prentice 6  McLean     65 

Columbus  Insurance  Co.  v.   Peoria  Bridge 

Ass'n 6  McLean     70 

United  States  v.  Railroad  &  Bridge  Co.    .      .    6  McLean  516 
McCormick  v.  Manny .6  McLean  539 

Of  his  175  cases  in  the  Illinois  Supreme  Court  Mr.  Lin- 
coln won  92 ;  of  his  1 2  cases  in  the  United  States  Circuit 
Court  final  decision  is  reported  iti  only  10.  Of  these  he 
won  7.  Of  his  3  cases  in  the  United  States  Supreme  Court 
he  won  2. 


327 


INDEX 


INDEX 


Abolition,  opinion  on,  44 
Adams,  James,  case  against,  84 
Admission  to  bar,  59-61,  117 
Advice  to  Lawyers,  33,  76,  102, 

199,  241 
Alabama  Arbitration,  307 
Argument,  Lincoln's  first,  40 
Ancestry,   1-7 

Anderson,  Major  Robert,  47 
x\ppellate  courts,  record  in,  Ap- 
pendix 
Apprenticeship,  law,  70-81 
Armstrong   case,   229-234;   trial 

of,  280 
Army  experience,  46-49 
Arnold,  Isaac  M.,  209,  228,  252, 
261 


Baddeley,  case  for,  80 
Bailey  v.  Cromwell,  117 
Baker,  E.  D.,  89,  93,  128,  206 
Beardstown,  231 
Benjamin,  Judah  P.,  278 
Benjamin,  Judge  R.  M.,  60 
Berry  &  Lincoln,  49 
Birthplace,  7 

Birthright  to  the  law,  1-10 
Black  Hawk  war,  46-48 
Blackwell,  Robert,  252 
Blackstone's   Commentaries,   50, 

119 
Blair,  Montgomery,  272 
Books,  9 

Boonville  Court,  16-19 
Boutwell,  George,  272 
Boyhood,  6-8,  13,  14 
Breckenridge,  18 
Briefs,  40,  215,  247,  251-4;  256-7 
Browning,  O.  H.,  90,  206,  252 
Buchanan,  97,  290,  294 
Burr,  Aaron,  33 
Butterfield,  Justin,  157 


Calhoun,  51 

Cameron,  Simon,  286 

Candidate,  Lincoln  as,  280-292 

Cartwright,  Peter,  145,  236 

Case-lawyer,  129 

Cases,  Lincoln's  first,  82;  early, 
82-95;  in  U.  S.  Supreme 
Court,  246;  in  Illinois  Su- 
preme Court,  248;  and  Ap- 
pendix; jury,  202;  Logan  & 
Lincoln's,  125-6;  Lincoln  & 
Herndon's,  144;  full  record 
of,  248,  and  Appendix 

Cass,  General,  47-9 

Caton,  Judge,  249 

Chase,  Salmon,  207 

Chicago,  cases  in,  259,  261 ;  Con- 
vention, 195,  285;  Tribune, 
260 

Circuit,  life  on,  104-111 

Circuit,  riding  the,  160-177 

Clark,  General  Marston,  22 

Clerkship,  96-103 

Clientage,  196,  200,  248,  249 

Competitors,  early,  82-95 

Congress,  candidacy  for,  127-9, 
132;  election  to,  145;  record 
in,  148-158 

Congressional  Dictionary,  146 

Constitution,  296,  298 

Cooper  Union  speech,  281,  282 

Counsel  for  lawyers,  200 

Court-houses,  primitive  Indiana, 
19,  20;  primitive  Illinois,  62, 
69 

Court  lawyer,  Lincoln  as,  109, 
260,  268 

Courts,  early  success  in,  104-111 

Crawford,  9 

Criminal  practice,  235 

Cross  examiner,  Lincoln  as,  221- 
34 

Curtis,  George  T.,  272 

Cullora,  Shelby  M.,  236 


331 


INDEX 


D 

Davis,  Judge  David,  90,  94,  133, 

172,  175,  178-84,  194-6,  212-3, 

242 
Decatur,  111.,  27 
Dey,  Peter  A.,  260 
Diekerson,  E.  H.,  255 
Dickey,  Judge,  264 
Dignity,  175 
Dillworth,  Caleb  J.,  232 
Disorderly  habits,  96-101 
Douglas-Lincoln  debate,  263-280 
Douglas,  Stephen  A.,  36,  60,  89, 

93,  105,  110,  122,  229,  264,  265; 

his  errors  of  law,  229,  277-280 
Dred  Scott  case,  45,  269,  271-9, 

281,  296 
Drummond,  Judge,  261 
Dungee  v.  Spencer,  242-4 
Dunn,  Thomas  F.,  235-6 

E 

Early  practice,  56-61 
Education,  Lincoln's,  7-10,  197- 

200 
Edwards,  N.,  90 
Eggleston,  Edward,  229 
Eighth  Circuit,  167;  map   of, 

169 
Emancipation,    compensated, 

304-305 
Ethics,    Lincoln's    professional, 

31-5,  52-5,  102-3,  235-44 
Euclid,  study  of,  198 
Ewing,  James,  193,  222 
Examination  for  Bar,  59 


Federal  Courts,  cases  in,  327 
Fees,  85,  144,  241-4 
Fell,  Jesse,  280 
Ferguson,  v.  Kelso,  29 
Ford  case,  22 
Ford,  Governor,  60-61 
Forsythe  v.  Reynolds,  246 
Fraim,  trial  of,  235-6 
Freeport  questions,  275-6 
Fugitive  Slave  law,  45,  296 
Fuller,  Samuel  L.,  261 
Fun-maker,  Lincoln  as,  190-5 


G 

Gentryville,  14 

German,  Lincoln's  studv  of,  197 

Goodrich,  Grant,  159,  161,  252 

"Graysons,  The,"  229 

Greeley,   Horace,  295 

Green,  Bowling,  29-30,  57 

Grub  v.  Crane,  131 

H 

Haines,  Hon.  James,  186-7 
Hall  v.  Woodward,  182 
Hardin,  John  J.,  90,  128 
Harding,  255 
Harrison,  trial  of  "Peachy," 

235-8,  282 
Hawthorne  v.  Woolridge,  82-83 
Herndon,  William  H.,  132,  139- 

44,  159-60,  175,  216,  236,  239, 

285,  290,  292 
Higgins,  Van  H.,  261 
Hingham,  Lincolns  of,  5 
Hitt,  Robert  R.,  221,  224,  260 
Hoblit,  James  T.,  224-6 
"Honest  Abe,"  31 
Hudson  case,  24 
Hurd   v.   Railroad   Bridge   Co., 

259-60 


Ideals  of  law,  31-34,  42-5 
Illinois    Central    Railroad,    240, 

251-254,  261,  268 ;  case  against, 

Appendix;    v.    McLean,    250, 

268 
Illinois  primitive  bench  and  bar, 

56-69 
Independence,    101 
Indian  fighting,  46-9 
Indiana    primitive    bench     and 

bar,  19-26;  Revised  Statutes, 

10-13,  57 
Ingersoll,  Robert  G.,  192 
Inspiration,   professional,   13-18 


Jefferson,  Joseph,  87;  Thomas, 

99 
Johnson,  Andrew,  293;  Reverdy, 

255,  272,  295;  v.  Jones,  261 


332 


INDEX 


Joy,  J.  F.,  250 

Judd,  N.  B.,  252,  286,  287 

Judge,  Douglas  as  a,  131;  Lin- 
coln as  a,  188-91 

Judges,  pioneer,  21-25,  62-68 

Jury,  182,  215 

Jury,  backwoods,  20-21 

Jury-lawyer,  Lincoln  as  a,  100, 
208-221 


K 


Kelly  v.  Garrett,  132 


Lacey,  Lyman,  229 

Latin,  legal  use  of,  131 

Law  in  the  debate,  263-80;  Lin- 
coln's knowledge  of,  198,  267- 
80;  Lincoln's  opinion  on,  42-5; 
student,  Lincoln  as,  46-56 

Leader  of  Bar,  196-207 

Lecture  on  law,  33,  102-3 

Legislature,  104;  election  to,  56- 
58;  first  canvass  for,  48;  Illi- 
nois, 90 

Lewis  v.  Lewis,  246 

Library,  75 

Lincoln  &  Herndon,  134-47; 
cases,  144 

Lincoln,  Nancy,  7;  Robert  T., 
164;  Thomas',  6;  town  of  133, 
135;  v.  Illinois  Central  R.  R., 
252-4,  Appendix 

Linder,  General,  181 

Litigation,  dislike  of,  102 

Logan,  Judge  Stephen  T.,  60, 
93,  105,  112-115,  183,  206, 
236,  252,  258,  285;  &  Lincoln, 
112-34 

Logic,  263 

Lovejoy,  Elijah,  141 

M 

McClernand,  John  A.,  90,  236 
McCormick    reaper    case,    207, 

255-8 
McDougall,  James  A.,  81,  91,  94 
Managing  clerk,  Lincoln  as,  96- 

102 
Mast  fed  lawyer,  198 


Memorials,  Bar,  Appendix 
Memory,  11,  12 

Methods  in  court-room,  208-220 
Metzker  murder  case,  229-234 
Mississippi  bridge  case,  260 
Missouri  Compromise,  263-4 
Morris,  Buckner  S.,  261 
Murder  trial,  primitive  Illinois, 

65-67 
Murder  Cases,  18,  65-7,  229-238 
Myers  Building,  160 
Myths,  1-18 

N 

Neutrality,   International,  299 
New  Salem,  28,  35,  39 
Nick  name,  31,  175 

O 

Oak  Ridge  Cemetery,  309 
Offices,  law,  74, 127,  i60,  173,  292 
Offutt,  28,  46 
Oglesby,  Richard,  206,  285 
Opinions  of  contemporaries, 
Oratory,  opinion  of,  199,  216 
Oregon,  Governorship,  158 
Orendorff,  General  A.,  249-50 
Orgmathorical  Court,  176,  242 


Palmer,  John  M.,  206,  236,  283-5 
Partnerships,  70-81;  112-33;  141, 

147 
Patent  cases,  207,  255-8;  259 
Peacemaker,  Lincoln  as,  102-3, 

244,  307 
People  v.  Green,  65-68 
Pettifogging,  57 
Phillips,   Isaac  N.,  88 
Polk,  President,  151,  274 
Poore,  Ben:  P.,  158 
Postmaster,  Lincoln  as,  96 
Practice  on  the  circuit,  200-7 
Preparation  for  Bar,  75-81,  199, 

246 
President,  Lincoln  as,  293-310 
Prince,  E.  M.,  211 
Psychic  powers,  Lincoln's,  227 
Purple,  Judge  Norman,  252 


°>83 


oc« 


INDEX 


R 

Reconstruction,   Lincoln   on, 
308-9 

Record  of  cases,  248,  and  Ap- 
pendix 

Reputation    at    Bar,    199,    200, 
208;  245-63 

Revised  Statutes  of  Indiana, 
10-13 

Reynolds,  Judge  John,  62-68 

Rock  Island  Railroad,  249,  286 

Rogers  v.  Dickey,  132 


Sand  Bar  case,  261,  285 
Sangamon  County,  56,  60; 

River,  39-40 
Santa  Anna,  148-9 
Schooling,  7-8 
Scott,  Dred,  45,  269,  271-9;  281, 

296 
Scott,  Judge,  206 
Scammon  v.  Cline,  78 
Seward,  206,  294,  299 
Shaw,  J.  Henry,  232-3 
Shop  keeping,  49-50 
Smith,  Caleb,  286 
Speed,  Joshua,  59,  175 
Spot  Resolutions,  151-4 
Springfield,  19,  30,  48,  58,  69,  79, 

84-5;  88,  125 
Stanton,  Edwin  M.,  206-7,  255-8 
Stevenson,  Adlai  E.,  285 
Stories,   22-4,   123,   217-20,   248, 

291 
Story  telling,  192-5 
Stuart,  Major  John  T.,  48,  59, 

71,  90,  206;  &  Lincoln,  59,  70- 

81,  96-8 ;  &  Lincoln's  fees,  85 ; 

&  Lincoln's  law  office,  74 
Student,  Lincoln  a  law,  46-56 
Supreme  Court,  U.  S.,  cases  in, 

245-6 


Surveying,  51,  56;  legal  opinion 

on,  52,  53 
Swett,   Leonard,   183,  206,   210, 

212-3,  238,  285 


Talisman  steamer,  141 

Taney,  Judge,  246 

Taylor,  President,  154-6 

Tazewell  County,  182,  186 

Technicalities,  legal,  100 

Temperament,  137,  138 

Texas,  148-9 

Thomas,  W.,  249 

Thornton,  James  T„  76 

Training,   246 

Treat,  Samuel,  60,  164-5 

Trent  case,  121 

Trumbull,  Hon.  Lyman,  90,  94 

Turnham,  10 

U 

Usury,  opinions  on,  41 


Van  Arman,  John,  261 

W 

Walker,  William,  230 
Wealth,  opinioi.s  on,  119 
Webster,  Daniel,  86,  158 
Weldon,  Judge  Lawrence,  36-7, 

170,   175,   188,   190,   212,   222, 

242-3   285 
Wells,  H~  G.,  209 
Whitney,  H.  C,  188,  237 
Williams,  Archibald,  252 
Wills,  John  A.,  261 
Wright  case,  215 
Wyant,  trial  of,  235 


334 


* 


3<r* 


